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Full text of "The law of naval operations"

INTERNATIONAL LAW STUDIES 

1991 
THE LAW OF NAVAL OPERATIONS 



Edited by 
Horace B. Robertson, Jr. 

Volume 64 



NAVAL WAR COLLEGE PRESS 
NEWPORT, RHODE ISLAND 



Library of Congress Cataloging-in-Publication Data 

The Law of naval operations / edited by Horace B. Robertson, Jr. 

p. cm. — (International law studies; v. 64) 

Includes index. 

1. Naval law. 2. War, Maritime (International law) 
I. Robertson, Horace B. II. Series. 
JX1295.U4 vol.64 
[JX5211] 

341 s— dc20 91-30350 

[341. 6'3] CIP 



Dedicated to the memory of Professor L.F.E. Goldie - scholar, counselor, and 
friend. 



Contents v 
TABLE OF CONTENTS 

Page 

FOREWORD vii 

PREFACE ix 

I. Moving International Law from Theory to Practice: The Role of Military 

Manuals in Effectuating the Law of Armed Conflict 1 

W. Michael Reisman and William K. Lietzau 

II. International Law and Naval and Air Operations at Sea 19 

Bernard H. Oxman 

III. Peacetime Use of Force on the High Seas 38 

Louis B. Sohn 

IV. International Straits 91 

Lewis M. Alexander 

V. The Commander's Handbook on the Law of Naval Operations and the 
Contemporary Law of the Sea 109 

A. V. Lowe 

VI. Neutrality 148 

Mark W. Janis 

VII. Maritime War Zones and Exclusion Zones 156 

L.F.E. Goldie 

VIII. The Law of Submarine Warfare Today 205 

Jon L. Jacobson 

IX. Naval Targeting: Lawful Objects of Attack 241 

Sally V. Mallison and W. Thomas Mallison 

X. Noncombatant Persons: A Comment to Chapter 11 of the Commander's 

Handbook on the Law of Naval Operations 300 

Frits Kalshoven 

XL Nuclear, Chemical, and Biological Weapons 331 

Howard S. Levie 



vi Law of Naval Operations 

XII. Submarine Mines in International Law 351 

Thomas A. Clingan, Jr. 

XIII. Modern Technology and the Law of Armed Conflict at Sea . . . 362 
Horace B. Robertson, Jr. 

APPENDIX: THE COMMANDER'S HANDBOOK ON THE LAW OF 
NAVAL OPERATIONS NWP 9 (Rev. A), FMFM 1-10 385 

INDEX 509 



VII 

FOREWORD 

The International Law Studies "Blue Book" series was initiated by the 
Naval War College in 1901 to publish essays, treaties and articles that 
contribute to the broader understanding of international law. This, the sixty- 
fourth volume of that series, coincides with a renaissance in the study of 
international law within the Naval War College and the return of the "Blue 
Book" series to the forefront of analysis and development of the rules of law 
governing the world's oceans both in time of peace and in time of war. 

As editor and contributing author to this volume, Professor Horace B. 
Robertson has made a singular contribution to this tradition of legal 
scholarship. The principal focus of this work is the Commander's Handbook on 
the Law of Naval Operations promulgated within the Department of the Navy 
for the guidance of operational commanders and supporting staff elements 
of all levels of command of the Navy and Marine Corps. The thirteen 
contributors to this volume are among the world's most highly respected 
authorities in the field. Each has addressed a separate facet of oceans law 
and all have provided an independent, and sometimes critical, assessment of 
the articulations of law set forth in the Handbook. While the opinions expressed 
in this volume are those of the individual authors and are not necessarily those 
of the United States Navy nor the Naval War College, they collectively 
provide a valuable contribution to the study and development of the rules 
of law governing the conduct of nations on and over the world's oceans. On 
behalf of the Secretary of the Navy, the Chief of Naval Operations and the 
Commandant of the Marine Corps, I extend to Professor Robertson and the 
contributing authors of this informative and provocative work our gratitude 
and thanks. 

Joseph C. Strasser 

Rear Admiral, U.S. Navy 

President, Naval War College 



IX 

PREFACE 

It is in accord with the highest traditions of the United States Naval War 
College that it should be in the forefront of the development, debate, and 
exposition of international law. It is therefore appropriate that in connection 
with the promulgation of The Commander's Handbook on the Law of Naval 
Operations (NWP 9) by the Department of the Navy in 1987 the War College 
should authorize the publication under its auspices of a volume in its "Blue 
Book" series marking that event and serving to bring it to the attention of 
an audience beyond the Department of the Navy. 

The promulgation of The Commander's Handbook on the Law of Naval Operations 
is a welcome event. Its predecessor publication, Law of Naval Warfare (NWIP 
10-2), was first published in 1955, and although amended on several occasions, 
was in need of updating. Further, since naval operational manuals are an 
important vehicle for expressing the official views of a government as to its 
official position with respect to the international norms governing the conduct 
of naval forces in both time of peace and time of war, it is important that 
governments publish such manuals at reasonable intervals so that their 
positions may be known to other governments, international organizations, 
scholars, and others with a concern for the behavior of the Navy in the 
international arena. The process of obtaining intra-government agreement 
on the norms promulgated also serves as a means of requiring the various 
elements of the government that have a legitimate concern with naval 
operations to focus on the evolving standards of the relevant international 
law and agree as to how naval commanders shall be instructed in this respect. 

The structure of the Commander's Handbook differs from its predecessor 
manual in two major respects, namely: (1) it is divided into two parts, Part 
I dealing with "The Law of Peacetime Naval Operations, " and Part II 
covering the "Law of Naval Warfare." NWIP 10-2, the predecessor manual, 
dealt exclusively with the law of naval warfare; and (2) it is not footnoted 
and annotated but rather is written for "the operational commander," to 
enable him "to understand better the commander's responsibilities under 
international and domestic law [and] to execute his mission within that law." 
(Handbook, Preface.) 

Both of these changes are applauded. The addition of Part I, with its 
extensive and up-to-date elaboration of the international law of the sea, 
provides a much needed guidebook for peacetime operations for naval 
commanders and their staffs. The elimination of footnotes, both those 
providing sources of the rules and those elaborating or qualifying the rules, 
though criticized by some, is, in my opinion, a major improvement. The 
footnotes in NWIP 10-2 tended to confuse and frustrate the lay reader. 

As stated in the Preface to the Handbook, 



The explanations and descriptions in this publication are intended to enable the naval 
commander and his staff to comprehend more fully the legal foundations upon which 
the orders issued to them by higher authority are premised and to understand better 
the commander's responsibilities under international and domestic law to execute his 
mission within that law. This publication sets forth general guidance. It is not a 
comprehensive treatment of the law nor is it a substitute for the definitive legal guidance 
provided by judge advocates and others responsible for advising commanders on the 
law. 

For the benefit of "judge advocates and others responsible for advising 
commanders on the law," there is an encyclopedic Annotated Supplement to The 
Commander's Handbook on the Law of Naval Operations, prepared under the 
auspices of the Judge Advocate General of the Navy and the Naval War 
College, which has been distributed to appropriate Navy and Marine Corps 
legal officers. It contains a section-by-section analysis of the Handbook with 
full discussion of the concepts involved and the sources of the rules stated. 

The present volume in the "Blue Book" series, The Law of Naval Operations, 
was conceived as a vehicle for bringing broader attention to the publication 
of the Handbook and stimulating a renewed debate on naval operational law 
and the law of armed conflict at sea. The essays that constitute the volume 
are not intended to be a comprehensive treatment of all of the subjects dealt 
with in the Handbook but rather are focused on some of the more controversial 
and significant areas of the law dealt with in it. In some cases they are in 
the nature of a critique of the Handbook's treatment of a subject (see, for 
example, Professor A. V. Lowe's chapter V, "The Commander's Handbook 
on the Law of Naval Operations and the Contemporary Law of the Sea," 
and Professor Frits Kalshoven's chapter X, "Noncombatant Persons: A 
Comment to Chapter 11 of the Commander's Handbook on the Law of Naval 
Operations"). In others, the authors use the Handbook as a take-off point for 
discussions of particular areas of naval operational law or maritime policy 
(see, for example, Professor Bernard Oxman's chapter II, "International Law 
and Naval and Air Operations at Sea," and Professor Louis B. Sohn's chapter 
III, "Peacetime Use of Force on the High Seas"). 

In all cases, the authors have been free to express their own opinions, 
whether such opinions are consistent with those stated in the Handbook or the 
positions of the Naval War College or the Department of the Navy. Such 
freedom of expression is consistent with the long-standing policy of the Naval 
War College to foster open debate by its students, instructors, speakers, and 
authors on governmental and naval policies. The editor and authors of this 
volume are grateful to the President and staff of the Naval War College for 
encouraging this policy of freedom of expression. 

The Handbook has been modestly revised since its initial promulgation to 
the Fleet in July, 1987 and it is the revised text, denoted "(Rev. A)" that 
appears in the Appendix. Because the authors of the essays within this volume 



XI 

had before them the original text, the changes in the revised Handbook set 
out in the Appendix have been underlined. While attachment of the original 
text would have been more faithful to the commentary of the authors, it was 
considered appropriate that the most up-to-date iteration of the Handbook be 
appended to this volume. 

I wish to thank each of the authors represented in this volume for their 
contributions. I also wish to thank Professor Richard J. Grunawalt and the 
other members of the Naval War College faculty and staff for their invaluable 
assistance, support, and patience. 

Horace B. Robertson, Jr. 



Reisman and Leitzau 1 



Chapter I 

Moving International Law from Theory to 
Practice: the Role of Military Manuals in 
Effectuating the Law of Armed Conflict 

by 
W. Michael Reisman* and William K. Leitzau** 



Military manuals and handbooks containing operational rules prescribed 
by international law (hereinafter "manuals") are important to the 
operation of the international legal system for two related reasons. First, they 
are the indispensable modality for disseminating normative information to 
those whose behavior is the target of the norms in question. Second, they 
are an essential component in the international lawmaking process, often the 
litmus test of whether a putative prescriptive exercise has produced effective 
law. Without adequate dissemination, this putative international lawmaking 
is an exercise in the elaboration of myth through lex simulata 1 rather than the 
installation of an effective operational code. 

There is a developmental aspect to both of these properties in the sense 
that if they are effectuated adequately, they contribute to the operation of 
the sector of international law concerned with armed conflict. There is, as 
well, a necessarily comparative aspect to inquiry about these properties in 
that this area of law, even more than others, depends for its vigor on 
reciprocity. Unless there is a comparable and manifest "scoring" on the 
manuals (or their functional equivalents) of adversaries, the symmetry 
necessary for reciprocity will be absent and the norms with which they are 
concerned are unlikely to be effectively incorporated into international legal 
practice. 

I. Military Manuals As A Mode of Dissemination 

A, The Importance of Dissemination 

In small groups and micro-communities, the same persons who make law, 
act on it, apply it and enforce it. 2 But, as Durkheim observed, the large social 
organizations characteristic of most sectors of modern life require labor and 
role divisions and refined task specializations. 3 As a result, it is not only 
probable that entirely different persons will make law, act on it, apply it and 



2 Law of Naval Operations 

enforce it, but it is also likely that there will be considerable temporal and 
social distance between the specialists performing each of these functions. 
The phenomenon is not unique to international law. In the United States, 
the Supreme Court encounters much the same problem. James Levine writes, 

The conditions necessary for Supreme Court efficacy are much more stringent when 
the people and institutions to be controlled are farther removed from the Court's range 
of command and less threatened by the force of its sanctions. It is much easier for the 
Supreme Court to curb a few cantankerous federal judges than to reallocate the 
fundamental values of the society. 4 

"Causal distance, " as Levine styles it, can be an even greater problem in the 
more complex international political system. 

In large social organizations, effective lawmaking requires an additional 
step: the efficient dissemination and effective internalization of authoritative 
norms in those persons "in the field" as it were, whose behavior is the target 
of the norm in question. The process of dissemination is a necessary component 
of any communication that extends beyond the mediation of subjectivities 
between two proximate persons. It can be most economically expressed in 
terms of Harold D. Lasswell's classic paradigm of Who/ What/ Whom/How/ 
Results/Effects. Less cryptically, Lasswell's heuristic asks for pertinent 
information to be organized in terms of: 

Who is communicating (Communicators) 

What (Content) 

To whom (Target Audiences) 

Through what channels (Channels) 

With what results (Immediately Changed Subjectivities) 

And with what longer term effects (Long Term Changed Subjectivities). 5 
When information is so organized, the aggregate consequences of a 
communication are clarified and the factors that accounted for success or 
failure may be analyzed, appraised and made the subject of policy 
recommendations. 

Our focal content is the law of armed conflict and related internationally 
prescribed norms. Audiences may vary depending upon the type of activity 
sought to be regulated. Decisions about the use of nuclear weapons, for 
example, are unlikely to be made by men and women in the ranks. 
Dissemination of norms regarding nuclear weapons employment should 
therefore target higher military and political echelons. Comparative 
examinations of manuals must take account of variables such as these. 

We are concerned with identifying channels because, as is well known, 
human beings mediate subjectivities on different levels and with varying 
degrees of explicitness. As we will see, contrary messages about prescribed 
behavior may be modulated simultaneously through different channels. We 
are concerned with results, for lawmaking is not a form of communication 
that is ritualistic, with its social functions fulfilled by the action of 



Reisman and Leitzau 3 

communication itself. It is designed to precipitate social results. To the extent 
that it fails to do this, the entire exercise has failed. We are concerned with 
longer term effects because prescriptive communications also shape 
perspectives about the constitutive process 6 and value regulations other than 
those which have been manifestly targeted. 

In a socially meaningful sense, then, the making of law necessarily involves 
much more than the clarification and establishment of some community policy 
in authoritative form. If law is to be effective, it must be transmitted and, 
where necessary, translated into formulations appropriate for those operating 
in the field whose behavior is the ultimate target of the principles in question. 
This process, which has been variously described as promulgation, 
dissemination, implementation, or publication, is a necessary step if law is 
to be transformed from an exercise in theory to a matter of practice. 7 

Unless a large number of those who are the target of particular formulations 
become familiar with and internalize the norms in question, the entire burden 
of enforcement is shifted to appliers and is greatly magnified. Their resources 
are limited, however, and would hardly suffice for such an enormous task. 
Moreover, if the norms they are asked to apply have not been internalized 
by a large part of the community, their actions appear arbitrary, retroactive 
and ex post facto and undermine rather than reinforce the symbol of law. 8 
Though many legal systems insist that ignorantia legis haud excusat, all seem to 
appreciate that the point of legislative exercises is not to punish those who 
prove to be ignorant of the law. It is to get the message across beforehand 
to those who are expected to adjust their behavior in accordance with the 
norm. 9 

Dissemination can also precipitate the reciprocal consequence. Where an 
international prescription has been internalized at the rank-and-file level, it 
may serve to limit violations among the elites themselves. Even when 
prescriptive violations appear to serve short-term special interests, elites may 
find that there is rank-and-file resistance to norm repudiations. In effect, by 
disseminating rules of warfare, national command authorities raise the costs 
of violating those rules both in peace and war. Essentially, they are divesting 
themselves of power in return for other expected gains. Policy changes must 
first be communicated to the appropriate field authorities and then 
disseminated to relevant actors — in some cases the individual troops. Even 
if successfully communicated, the cost of deviating from a known policy is 
much greater than that of simply reversing a government-to-government 
statement. Neither personal demands for rectitude nor notions of chivalry 
are dead among military personnel. Moreover, the effectiveness of military 
units depends on leadership which exemplifies integrity. 

The point merits emphasis. Dissemination not only internalizes norms 
within the domestic system; it internalizes them within the members of a 
warrior class who take their profession seriously. This is not to say that soldiers 



4 Law of Naval Operations 

can not be made to violate international law; some will predictably do so 
in violation of orders. What effective dissemination does mean, however, is 
that the default position is set in favor of accepted norms, and the costs of 
resetting will have to be weighed. 

B. Methods of Dissemination 

Law, like all types of learned behavior, can be transmitted in many, not 
necessarily exclusive ways: by single or repetitive communication, in manifest 
or latent forms, by precept and example, by positive or negative 
reinforcement, etc. Transmission can be relatively simple and single-step, for 
example, publication in an official gazette, or complex and multi-step as in 
a sequential opinion-formation process. Each phase may be inhabited and/ 
or dominated by different specialist groups which are expected to interpret, 
digest and formulate the message in ways that make it comprehensible and 
practicable to the level they are serving. 

Each phase of the transmission process may, in turn, become a sub-power- 
arena, in which politically relevant social forces bring to bear whatever bases 
of power are relevant in the setting in order to secure an interpretation and 
refashioning of the authorized policy that discriminates in their own favor. 10 
In politics, as its practitioners know, there is no end to politics and, as the 
adage puts it, "nothing is finished until it's done." 

Consider, by way of example, the sequence of linkages by which the 
Supreme Court's ruling in Miranda 11 filtered down from the Supreme Court, 
through the law enforcement bureaucracy, to the policemen on the beat. 
Institutional interpreters at different levels acted as mediators between the 
Court, with its general policy objective, and the actual law enforcement 
officers. The mediators, sensitive to contexts of application in ways in which 
the Court could not have been, introduced nuanced changes as they 
reformulated the Miranda doctrine into an operational code. There were many 
steps in this translation, involving attorneys in the Department of Justice, in 
many local police departments reflecting regional diversities, and finally 
commanding officers and police officers in lower grades. Before the principles 
became established, there were numerous feedback loops and challenges to 
the courts, with reinterpretations of various sorts. 12 Academies and private 
interest groups made their power felt at many points. The media played an 
important role, both in transmitting the normative content of Miranda and 
its social importance, while firmly anchoring it in folklore. The point of 
emphasis is that a sequence of steps of this sort is indispensable if formal 
prescriptions are to be even minimally effective. 

The dissemination of general normative information to the modern military 
is substantially the same as dissemination to any other sub-specialized 
organization. Hence one will not be surprised to discover, at the constitutive 
level, authorized channels for dissemination, 13 authorized symbols denoting 



Reisman and Leitzau 5 

normative information and its level of importance 14 and, at lower and more 
mundane levels, the handbooks, manuals and loose-leaf collections 15 so 
symptomatic of large, contemporary social organizations operating in the 
fluid environments that are the quintessence of modernity. 

But the dissemination of international legal information and, in particular, 
that part of it now known as the "law of armed conflict" makes the military 
organization distinctive. The dissemination of normative information is 
ordinarily eufunctional, incorporating and reinforcing the organization's 
authority. In contrast, the dissemination of the law of armed conflict in the 
military is (i) premised on a distinct supra-organizational authority, that is 
(ii) assumed to be competent to prescribe behavior which by definition 
contributes to the operation of the larger system but, at the same time, limits 
and may even undermine the particular military organization which has 
incorporated it. An important element of this prescribed behavior is 
reciprocity, which must sometimes be ascertained by the actors subject to 
the norms. Thus, the disseminating scheme is of critical significance in this 
context, for it represents the closest parallel to an "act" which can verify 
national intent. Moreover, it is the only means to achieve deterrence, since 
there are few opportunities for employment of "example" in which a post 
hoc violation/punishment nexus can be observed. Hence dissemination of 
normative information in the military setting is marked by simultaneous 
contrary organizational dynamics in which some authoritative elements are 
pressing for compliance while others are resisting it. 16 

These unique features of the law of armed conflict are important in 
comparative appraisals of dissemination. Precisely because there are strong 
organizational dynamics militating against norm implementation, 
dissemination must be contextually and systematically analyzed, not simply 
acknowledged via a perfunctory check for the presence or absence of a manual 
containing certain verbal formulae. Unless information in the manuals is 
accompanied by secondary guidance or metacommunications indicating the 
gravity and preeminence of the information, and the transmission is embedded 
in an enforcement system which is adequate and vigilant, manuals themselves 
mean nothing. And unless comparable manuals are in operation and in 
evidence in the different latent war communities, much of the normative 
information in the manuals may not be acted upon. 17 

One may, then, examine the effectiveness of a military manual in terms 
of content, mode of delivery, the secondary norms establishing its relative 
position in the effective normative hierarchy, its system of enforcement and 
reciprocity. Let us consider each of these components briefly. 

(i) Content: We are not interested in the existence of a manual on 
the simple-minded assumption that all manuals are the same. 18 Of critical 
importance is the specific content of the manual under examination in terms 
of more generally prescribed international norms. It is not enough to develop 



6 Law of Naval Operations 

a mechanical checklist to verify that certain items are in the manual. How 
they are translated into the pertinent vernacular and with what nuance and 
shading are also important. Content must be examined not only in terms of 
what is manifest in a particular manual, but in terms of the aggregate of orders 
about action putatively regulated by the law of armed conflict. Consideration 
should also be given to the relative ease with which a provision could be 
perversely construed to allow for self-serving interpretations in the future. 
In short, inquiry must identify the larger, functional manual and not only 
the words enclosed by pasteboard covers on which the word "manual" is 
emblazoned. Training publications and other instructional material regarding 
tactics may, for example, implicate referenced norms. If, by way of 
hypothesis, classified orders were to state that, on the occurrence of certain 
contingencies, those orders come into operation and override normative 
material that is found in any other communication, those orders would have 
to be considered part of the manual. 

(ii) Mode of Delivery or Vehicle: Normative information may be 
conveyed in many forms. The advantage of a manual, especially in a 
hierarchical setting, is that it is relatively precise and unchanging, allowing 
for standardization and clarity in communication and ease in ascription of 
responsibility. It is also relatively easy to disseminate. 19 Each operative may 
be given a complete manual. The test is not satisfied, however, unless the 
content of the manual is in fact disseminated to the appropriate levels in 
credible fashion. 20 Timing here can be of moment since early indoctrination 
might stimulate more resistance to a potential violation. 

Equally relevant, a manual simplifies international surveillance. While one 
should resist elevating form over substance, form here is of decided 
importance. Written prescriptions have a permanence which makes 
repudiation observable even to those not targeted by the dissemination. 21 
There is a greater political cost involved in violations which are inconsistent 
with previous governmental statements. On the other hand, there are military 
organizations or situations in which manuals may be inappropriate. Where, 
for example, officers and ranks are illiterate or semi-literate, other vehicles 
for dissemination must be sought. 22 Likewise, dissemination should take 
account of the decision-making level of the target. Each sailor, for example, 
need not possess a manual explaining the juridical bay concept. 

(iii) Secondary Norms: Unless a manual is identified by secondary 
norms within the organization as of transcending importance, it is not worth 
the paper on which it is printed. The key norms in this regard are, first, the 
preeminence of international law over national law and second, that superior 
orders do not constitute a defense to a violation of international law. These 
secondary norms must be effective. Here again, words do not suffice. The 
expectations of the effectiveness of norms are sustained and reinforced by 
the availability of manifest and credible methods of implementation; norms 



Reisman and Leitzau 7 

erode into lex simulata if it becomes apparent that there is neither means nor 
will to implement them. During combat, the more proximate authority and 
control system will prevail over the more distant. Hence, from a practical 
standpoint, it is important that the substantive content of the international 
norm be incorporated before conflict. This will constitute effective 
superordination of international over national law. 23 

(iv) Systems of Enforcement: There must be an environing 
indigenous system of enforcement of the norms which is sufficiently manifest 
and efficient to become part of the expectation pattern of those whose 
behavior is the target of the norms in question. This component is closely 
tied to that of secondary norms in that it is the domestic enforcement system 
which gives teeth to the acknowledged preeminence of international law. 24 

(v) Reciprocity: The military organization must provide for an 
accurate method for determining whether adversarial behavior is reciprocal 
where reciprocity is an element of continuing validity. 25 It is important that 
there be distinctions between the inevitable single unauthorized violations 
of prescribed norms, on the one hand, which should not authorize suspension 
of the norms by the other party, and systematic authorized violations, which 
should warrant suspension. 26 Without the means for making such distinctions, 
certain norms are likely to be suspended shortly after the first shot is fired. 27 
On the basis of the foregoing factors, comparative appraisals of the 
effectiveness of military manuals may be expressed in terms of a general 
quotient. More importantly, these distinct inquiries may be useful in terms 
of identifying pathologies with particularity and targeting them for 
appropriate remedies. 

II. Military Manuals As Part Of The Process 
Of Making International Law 

In addition to their important function in dissemination and transmission 
of international legal information, manuals are an important mode for making 
international law as well as evidencing its existence. 

Lawmaking, in any setting, involves the determination and communication 
of normative information accompanied by authorizing symbols and credible 
indications of control intention. In organized national systems, the popular 
and scholarly conception of this activity has involved prescription through 
legislatures and other highly institutionalized prescribing modes. 

Consensual international law is essentially made in two ways: by explicit 
agreement and by implicit agreement — which is usually referred to as custom. 
Explicit agreement includes treaties, the classic mode, as well as many newer 
methods involving explicit clarification of policy in an organized arena. 
Implicit agreement includes all the modes by which authoritative policy is 
informally arrived at and intercommunicated. 



8 Law of Naval Operations 

With regard to international law concerning the conduct of military 
conflict, manuals are important in both modes. Even when norms are 
prescribed in formal settings, a critical phase in their consolidation is national 
incorporation. Because international law notoriously lacks its own 
enforcement system, national implementation is often a critical factor in 
successful international lawmaking. The content of manuals, while not 
absolutely probative that particular international norms are being effected 
at the national level, is a conditio sine qua non for their implementation. 
Certainly, both the absence of a manual or the use of manuals whose content 
does not include the relevant norms would strongly suggest that those norms 
have not been adopted. 28 

Manuals play an even larger role in processes of implicit agreement. In 
the international system, as is well known, the bulk of international 
prescription is accomplished through processes which are informal and non- 
institutionalized. The critical building block in these processes is national 
action. It is not surprising that the U.S. Military Tribunal at Nuremburg stated 
that while not in themselves a competent source of international law, "[army 
regulations], as they bear upon a question of custom and practice in the 
conduct of war, might have evidentiary value, particularly if the applicable 
portions had been put into general practice." 29 Customary law is even more 
significant to the law of naval warfare since, it has been argued, attempts 
to codify norms relevant to land warfare have historically enjoyed more 
success than similar attempts regarding naval warfare. 30 

Some international norms are formed by homologous national action. 
Consider The Scotia case 31 in which Justice Strong ruled in favor of a British 
ship which had collided with an American vessel. He found that British orders 
regarding navigational lights had in fact become international law. 
Homologous national action may be evidenced in manuals or their functional 
equivalent. 32 Given the competitive character of their enterprise, specialists 
in adversary organizations will scrutinize the operational codes of their 
opponents to determine whether particular international norms have been 
adopted and put into effect. 33 The extent to which they have will obviously 
influence the willingness of others to adopt and act on them. 

The chivalric code of the Middle Ages was largely generated in this fashion. 
Since a vast majority of warriors, like the population at large, were illiterate, 
a written manual would have been pointless. Functional manuals transmitted 
authorized norms of warfare through a familiar oral tradition. Froissart 
recorded a fourteenth century incident which evidences the existence of this 
functional manual. Upon surrender, three French knights gave themselves to 
their English captors saying, "We are yours: you have vanquished us. Act 
therefore to the law of arms." 34 

A number of norms in the contemporary law of armed conflict may be 
traced to this pattern of lawmaking. Even in antiquity rules of warfare were 



Reisman and Leitzau 9 

often orally disseminated to troops. Cyrus, King of Persia (559 B.C.), 
Alexander the Great (333 B.C.), and Titus of Rome (70 B.C.) all insisted that 
their troops observe basic humanitarian rules such as sparing civilian 
populations and property and respecting religious buildings. 35 Protection of 
enemy wounded and prisoners of war can also be traced to earlier oral codes. 36 
For the latent lawmaking function no less than for the immediate operation 
of the laws of armed conflict, it is important that manuals be made available 
to potential adversaries. 37 Ironically, however, notifying an adversary 
regarding battlefield intentions may yield strategic or tactical advantages. It 
will be recalled that many in the military felt and still feel that the publication 
by Senator Goldwater of Rules of Engagement for part of the Vietnam theatre 
undermined U.S. military efforts there. 38 There is, thus, an understandable 
reluctance to publicize this material. On the other hand, its suppression 
decreases the probability of the norms being adopted by the adversary. It 
might be useful for the International Committee of the Red Cross (ICRC) 
to act as a clearinghouse for such material as a way of facilitating 
implementation and reinforcement of this part of the law of armed conflict. 39 

III. Military Manuals In Future Constructs 

Alexander Bickel described the heroes among common law judges as those 
who "imagined the past and remembered the future." 40 Generals are often 
cautioned against fighting their last war. Likewise, those who play a role in 
defining legal relationships must keep abreast of developing trends and 
technological advances. The probable role of military manuals in future 
conflicts is a question as perplexing as that of how the next battle will be 
fought. 

Many futures can be imagined; in each, the role and degree of effectiveness 
of military manuals will vary. In many, however, it would seem that effective 
dissemination, which is favorably measured by the criteria laid out earlier, 
will have some mitigating effect on the harshness and cruelty of warfare. 
Technological advances and the melange of future conflicts may be significant 
factors affecting the impact of manuals on the law of warfare. Dissemination 
needs must be constantly reconsidered in light of these concerns. 

Burgeoning technologies can significantly increase or decrease the number 
of actors necessary to perpetrate an act of violence. It is unlikely that the 
role of the individual rifleman will ever become obsolescent, but an increase 
in irregular warfare can vastly increase the numbers of willing and unwilling 
combatants and, as it were, consumers of the law of armed combat. At the 
same time, however, each technological advance can also significantly reduce 
the number of individual entities who need be concerned with the full range 
of the rules of warfare. As more sophisticated and efficient radars, targeting 
systems, sensing devices and weapon delivery systems are developed, 



10 Law of Naval Operations 

battlefield decisions become more concentrated at higher echelons. This is 
especially true at sea where improved combat information systems allow 
centralized control of myriad weapon systems. Manuals that are to be 
continuously relevant will need to focus on the type of decisions made at these 
levels. 

Concurrent with increased efficiency and destructiveness, modern weapon 
systems tend toward increasing the physical distance and reducing the 
psychological linkages between the initiator of violence and its recipient. As 
victims become more remote, the effect of the principle of chivalry declines 
as an influence on conduct, 41 and humanitarian law receives less assistance 
from other cultural restraints on human behavior. The task of constraining 
warfare becomes more difficult. Prescribers must make themselves cognizant 
of the effects of such latent pathologies in technology-assisted decision- 
making if effective humanitarian norms are to be crafted and maintained. 

A related factor affecting future combat is likely to be the development 
of advanced rapid communication systems. As observed in recent U.S. 
engagements, 42 modern communication systems drastically reduce battlefield 
decision-making, proportionately diminishing the need for field manuals, 
while pushing manual requirements "upstairs." 43 

On the other hand, the centrality of command and control in modern 
warfare will certainly make communications a preferred early target. Current 
strategies must consider the likelihood that adversaries will make every 
attempt to disrupt communications. 44 The same prudence demanded tactically 
must be observed when considering the effect of contingencies on observance 
of international law. Additionally, commanders' handbooks and manuals can 
serve to prepare leaders for contingencies which implicate international law. 
While a decision regarding neutral shipping, for example, may indeed be made 
at higher levels than that of the on-site commanding officer, prior training 
and familiarity with the manual may trigger an awareness of potential 
international law problems. Thus, even if the manual is not explicitly used 
as a reference to resolve a problem or question, it precipitates an identification 
of the issue which can be transmitted to higher echelons or used in split-second 
decisions. 45 

The most unpredictable construct regarding international norms is the 
twentieth century phenomenon of "total war." Partly a product of 
technological advances, recent wars have entailed an element of totality 
involving both mass participation and mass destruction. The ravages of the 
First World War led nations to renounce war entirely with the Kellogg- 
Briand Pact, 46 but they also highlighted the negative effects of losing. While 
total war may not have total winners, it can have total losers. Thus, a curious 
irony ensues. The current law of armed conflict has been framed by parties 
who have rejected warfare in general. Yet, when and if they do ever go to 
war, their interest in winning will be compelling, to say the least. 



Reisman and Leitzau 11 

The potential severity of defeat in modern conflicts aggravates the 
compliance problem. Indeed the advent of total warfare has spelled for several 
theorists the death of jus in hello. , 47 To some, the psychopathic character of 
von Clausewitz's statement, "[t]o introduce the principle of modernization 
into the theory of war itself would always lead to logical absurdity," is 
elevated to normality in total war scenarios. 48 When loss could mean national 
extinction, it is reasonable to assume that elites will reconsider past 
agreements or decisions which are strategically limiting. In an absolute 
conflict, a specific norm will rarely be attributed as much importance as 
winning. 49 

While key components of jus in hello seem likely to be an early casualty 
on the battlefield, effective multilateral dissemination could serve to preserve 
some lasting import for rules of warfare. Elites might understandably choose 
to reject customary rules during a given conflict, but their ability to do so 
is severely reduced once the rules have been effectively promulgated as we 
described earlier. By the time a conflict escalates to such a level that elites 
might consider abandoning norms, manuals will have been used for planning 
and training, and the norms they establish will have been internalized by the 
military and civilian components of the community. 50 The costs of attempting 
to change those norms will have been raised. 

All putative future legal constraints must take account of reciprocity. If 
a given adversary does not demonstrate reciprocal compliance with rules of 
warfare, pressure to abandon norms is likely to come from the combatants 
themselves. Similarly, the perceived content of the law of armed conflict 
could quickly change if one were losing a large-scale war with an adversary 
which had not adopted reciprocal normative constraints. Hence the effect 
of military manuals may depend not only on the nature of the conflict but 
the identity and behavior of the adversary. 

In these future constructs, the target of dissemination shifts "upward" to 
a few relatively senior leaders. In such an environment, the utility of manuals 
both in effectuating and in making law may be greatly diminished. Accepted 
norms will not incorporate the stability of wide-spread dissemination, and 
secondary constraints will only be effective as they operate on elites. The 
effect of domestic systems of enforcement and inherent constraints will be 
low and, in a total war setting, the motivation to violate norms may be high. 
Assurance of reciprocity, then, must come not through promises of non-use 
but through more measurable agreements, e.g. verifiable disarmament, 51 or 
imaginative new schemes such as programming norms into weapon targeting 
systems. 

The design of manuals for the total war construct is not the end of inquiry; 
the terminology, "armed conflict," instead of "war" or "warfare," suggests 
that a certain number of future conflicts are expected to be limited in scope 
and conducted in the context of routine peaceful activities or as protracted, 



12 Law of Naval Operations 

low intensity belligerencies. 52 Extended troop-intensive counter-insurgencies 
must also be considered as well as limited reprisals and antiterrorist activities. 

The resurgence of circumscribed reprisal/self-defense initiatives seen in 
recent years 53 provide limited opportunities for actual field reference to 
manuals due to the above mentioned nature of command and control. 
Similarly, specialized antiterrorist or rescue operations are likely to be 
specifically and thoroughly planned so as to obviate the need for referencing 
a manual of international norms. Therefore, it is all the more urgent to 
incorporate a manual of appropriate norms in the formative and training 
processes. Manuals will only have value in these conflicts if the norms they 
contain have been internalized before the fact. 

Guerrilla warfare and other forms of combat which may be extended in 
time but limited in scope, could prove to be most suited for effective use 
of military manuals. 54 In guerilla warfare, decision-making, by necessity, must 
be delegated; the proliferation of inevitable personal contacts gives rise to 
the kinds of situations most appropriately addressed in manuals and other 
disseminations. 55 Unfortunately, this type of combat situation is not 
adequately addressed by current conventions and treaties. 56 

In all of the constructs outlined above, the effectiveness of military manuals 
depends on two conditions: (i) dissemination and internalization of the norms 
prior to the fact, and (ii) reciprocity. The current focus should be on thoroughly 
incorporating international norms into planning and training exercises so that 
they will not be quickly jettisoned in combat. Moreover, we must "remember 
the future" and consider new schemes for effectively ensuring reciprocal 
observance in the evolving social organization of armed conflict. 

Conclusion 

Manuals are not an end in themselves. They are an instrument for achieving 
an end: the prescription and application of a law of armed conflict which 
tempers the harshness and cruelty of combat and confines human and material 
destruction to targets of military necessity and utility. 

Conflict is a social organization which requires a great deal of subjective 
and objective symmetry between the antagonists if the conflict is to be 
conducted in normatively authorized ways. The lower the level of subjective 
and objective symmetry, the more difficult it will be to establish and make 
effective norms regarding how armed conflict is to be conducted. Hence one 
will find in the socio-political situation the ultimate limits for lawmaking 
in this regard. 

The point is of moment in any consideration of the possibilities of the 
contemporary law of war. It is ironic that perspectives of how civilized 
peoples are supposed to fight are relatively homogenous within alliances and, 
formal documents notwithstanding, heterogeneous as between manifest and 



Reisman and Leitzau 13 

latent antagonists. The differences loom increasingly large in confrontations 
between the West and Fundamentalist Islamic groups, for the latter draw 
upon a history that has authorized and justified terror as a legitimate weapon 
for an expanded notion of self-defense. Information available about the 
training academies for terrorists in Iran suggest a functional manual, diverging 
widely from that common in western military organizations. 57 Part of the 
contemporary war against terrorism is, in fact, a war of manuals, in which 
coercion is being used to make adversaries fight "civilized. " The outcome 
of this war is far from certain. If it is lost, future manuals will look quite 
different from the one reviewed in this volume. The implications for national 
values and domestic political processes could be grave. 

Notes 

* Wesley N. Hohfeld Professor of Jurisprudence, Yale Law School. 
** B.S., U.S. Naval Academy 1983; J.D. Yale Law School 1989. 

1 . Lex simulata has been defined as a legislative exercise that produces an apparently operable statutory 
instrument which neither prescribers nor target ever intend to be applied. W. Michael Reisman, Folded 
Lies (New York: Free Press, 1979), pp. 31-34. 

2. Consider, for example, the internal workings of social organizations or "clubs," or the adoption 
of procedures by the Constitutional Convention in 1787. For a discussion of law making in micro- 
communities see W. Michael Reisman, "Law From the Policy Perspective" in Myres S. McDougal and 
W. Michael Reisman, eds., International Law Essays: A Supplement to International Law in Contemporary Perspective 
(Mineola, NY: Foundation Press, 1981), pp. 7-9. 

3. Emile Durkheim, The Division of Labor in Society (G. Simpson trans.) (New York: Macmillan, 1933). 

4. James P. Levine, "Methodological Concerns in Studying Supreme Court Efficiency," Law and Society 
Review, v. 4, p. 583, 584 (1970). 

5. See, Myres S. McDougal, et al., The Interpretation of Agreements and World Public Order (New Haven, 
CT: Yale University Press, 1967), pp. xii-xvi. See Also Harold D. Lasswell, Politics: Who Gets What, When, 
How (New York: Peter Smith, 1950) (earlier formulation); W. Michael Reisman, "International 
Lawmaking: A Process of Communication," American Society of International Law: Proceedings, 1981, pp. 105- 
13 (Harold D. Lasswell Memorial Lecture discussing Lasswell's approach to understanding lawmaking's 
communicative nature). 

6. This is especially true in those fields in which assessments of reciprocity must be made before 
the fact. In other fields reciprocity can be measured because adherence to a norm can be observed. In 
the area of armed conflict, however, true, or at least, operational intentions — the intentions that "count" — 
cannot be easily observed until after the conflict has begun. Effective dissemination, coupled with the 
metacommunication of a military law enforcement system (discussed below), demonstrates intention and 
practice. Both serve as earnest for future agreements. 

7. Dissemination is required by numerous provisions of treaties addressing the law of armed conflict 
for this very reason. See e.g. article 47 of the Geneva Convention (I) for the Amelioration of the Condition 
of the Wounded and Sick in Armed Forces in the Field, 12 August 1949 (6 U.S.T. 3114, T.I.A.S. 3362, 
75 U.N.T.S. 31); article 48 of the Geneva Convention (II) for the Amelioration of the Condition of the 
Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 12 August 1949 (6 U.S.T. 3217, 
T.I.A.S. 3363, 75 U.N.T.S. 85); article 127 of the Geneva Convention (III) Relative to Treatment of 
Prisoners of War, 12 August 1949 (6 U.S.T. 3316, T.I.A.S. 3364, 75 U.N.T.S. 135); article 144 of the Geneva 
Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949 (6 U.S.T. 
3516, T.I.A.S. 3365, 75 U.N.T.S. 287); article 25 of the Hague Convention for the Protection of Cultural 
Property in the Event of Armed Conflict, 14 May 1954 (249 U.N.T.S. 240; U.S. not a party); and article 
19 of the Protocol (II) Additional to the 1949 Geneva Conventions Relating to the Protection of Victims 
of Non-International Armed Conflicts, 8 June 1977 (16 I.L.M. 1448; U.S. not a party). 

Protocol (I) Additional to the 1949 Geneva Conventions Relating to the Protection of Victims of 
International Armed Conflicts, 8 June 1977 (16 I.L.M. 1391; U.S. not a party) serves as a good example 
of the emphasis placed on dissemination; article 6 (training of qualified personnel); article 82 (legal advisors 



14 Law of Naval Operations 

in armed forces); article 84 (rules of application); and article 87 (duty of commanders). The principal 
provision regarding dissemination, article 83, states: 

1. The High Contracting Parties undertake, in time of peace as in time of armed conflict, to 
disseminate the Conventions and this Protocol as widely as possible in their respective countries 
and, in particular, to include the study thereof in their programmes of military instruction and 
to encourage the study thereof by the civilian population, so that those instruments may become 
known to the armed forces and to the civilian population. 

2. Any military or civilian authorities who, in time of armed conflict, assume responsibilities in 
respect of the application of the Conventions and this Protocol shall be fully acquainted with the 
text thereof. 

Id., p. 1427. 

8. Some scholars from vanquished countries have opined that norms argued at the Nuremburg and 
Tokyo war crimes trials are representative of this detrimental kind of ex post facto prescription. See, e.g., 
Wilbourn E. Benton and George Grimm, eds., Nuremburg, German Views of the War Trials (Dallas, TX: 
Southern Methodist University Press, 1955); William J. Bosch, Judgment on Nuremburg (Chapel Hill, NC: 
University of North Carolina Press, 1970); Eugene Davidson, The Nuremburg Fallacy (New York: Macmillan, 
1973); Chihiro Hosoya, et al., eds., The Tokyo War Crimes Trial (New York: Kodansha International, 1986); 
Richard H. Minear, Victors' Justice: The Tokyo War Crimes Trial (Princeton, NJ: Princeton University Press, 
1971). Cf Ann Tusa and John Tusa, The Nuremburg Trial (New York: Atheneum, 1984). 

9. Even Nuremburg prosecutors had at their disposal evidence demonstrating that international norms 
had indeed been disseminated to German officers. See, e.g., "Introduction of the Hague Convention on 
Land Warfare in the German Army," Proceedings of the Investigating Committee of the German Constitutional 
Assembly and the German Reichstag 1919-1928 (resolution adding the Hague Convention text to the German 
Field Manual); "German Military Law and Law of War," Journal of Military Law (German), January 1944, 
pp. 389-93 (synopsis of course on military law); and A. Waltzog, Kriegsgerichtsrat der Luftwaffe (1942) (German 
Air Force manual). 

10. Consider, for example, Senate reservations and understandings regarding various treaties or the 
evolution of departmental understandings of "customary law". One example, brought to our attention 
by Professor Levie, concerns chemical warfare. After signing the 1925 Geneva Protocol for the Prohibition 
of the Use in War of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare, 
the Department of the Navy decided that it was in its interest to view the normative content as 
representative of custom. The Navy's action may indeed have helped the norm to become custom. See 
Howard S. Levie, "Nuclear, Chemical, and Biological Weapons," infra chapter XL 

A related example involves the U.S. practice of "restrictively" interpreting the use of straight baselines. 
The Commander's Handbook on the Law of Naval Operations, Naval Warfare Publication 9, 1987, par. 1.3.2 
[hereafter cited as Handbook]. This shaping of the general norm is a result of the transmission process. 
See article 4 of the Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958 (15 U.S.T. 
1606, T.I.A.S. 5639, 516 U.N.T.S. 205). 

See, generally, Harold D. Lasswell, et al., Propaganda and Promotional Activities (Chicago: University of 
Chicago Press, 1969). For material on the bureaucratic process see Peter M. Blau and Marshall W. Meyer, 
Bureaucracy in Modern Society, 2nd ed., (New York: Random House, 1971); Michel Crozier, The Bureaucratic 
Phenomenon (Chicago: University of Chicago Press, 1964); Henry Jacoby, The Bureaucratization of the World 
(E. Kanes trans.) (Berkeley, CA: University of California Press, 1973); Joseph LaPalombara, ed., Bureaucracy 
and Political Development, 2nd ed., (Princeton, NJ: Princeton University Press, 1967); Max Weber, 
"Bureaucracy," in H. H. Gerth and C. Wright Mills, eds., From Max Weber: Essays in Sociology (New York: 
Oxford University Press, 1958). Cf. Robert Presthus, The Organizational Society (New York: Alfred A. Knopf, 
1962). For a specific case study see Graham T. Allison, Essence of Decision: Explaining the Cuban Missile Crisis 
(Boston: Little Brown, 1971). 

11. Miranda v. Arizona, 384 U.S. 436 (1966) (seminal case regarding custodial interrogation and the 
exclusionary rule). 

12. See, e.g., Adam Carlyle Breckenridge, Congress Against the Court (Lincoln, NE: University of Nebraska 
Press, 1970) (detailed account of Congressional reaction to Miranda); Fred P. Graham, The Self Inflicted Wound 
(New York: Macmillan, 1970), pp. 305-32 (account of reaction to Miranda); Yale Kamisar, "How to Use, 
Abuse— and Fight Back with— Crime Statistics," 25 Okla. L. Rev. 239 (1972). See also Michigan v. Tucker, 
417 U.S. 433 (1974) (construing Miranda not to mean that the procedures themselves are rights); State v. 
Bliss, 238 A. 2d. 848 (Del. 1968) (Miranda not applicable to minor crimes and traffic offenses). 

13. E.g. , Congressional endorsement of executive law regarding the discipline of the armed forces, chains 
of command, delegated agencies assigned the task of writing various publications. 



Reisman and Leitzau 15 

14. E.g. , "Orders" as opposed to "guidelines," posters and their locations, letterheads and other trappings 
of officialdom. 

15. See Handbook supra note 10; Department of the Army, FM 27-10, the Law of Land Warfare (Washington: 
Government Printing Office, 1956); Department of the Air Force, AFP 110-31, International Law — The 
Conduct of Armed Conflict and Air Operations (Washington: Government Printing Office, 1976). Lower level 
dissemination involves a wide variety of less comprehensive training and instructional publications. 

16. Consider the complex situations afflicting many decisions in the Vietnam conflict. The common 
use of hamlets to shield Viet Cong combatants and the effective use of snipers, for example, contributed 
to tensions with respect to prescriptions against attacking undefended villages and norms regarding 
proportionality of response. See Guenter Lewy, America in Vietnam (New York: Oxford University Press, 
1978), pp. 230-32. 

17. It is important to realize, however, that the very existence of the manual, if adequately internalized, 
is of significance regardless of any adumbrations of reciprocal dissemination or compliance. Treatment 
of prisoners of war, for example, is an area in which reciprocity can rarely be observed until after the 
fact. Additionally, the targets of dissemination will seldom be the same actors who make comparisons 
of other operational codes. Thus even without reciprocity, manuals may serve, at least temporarily, to 
restrain one force in a manner which will not be reciprocated by the adversary. In a way whose significance 
may vary with context, effective dissemination of unreciprocated norms could clearly disadvantage the 
complying party. 

18. Even historically related military organizations may construe international norms differently in their 
manuals. The British equivalent to the U.S. Army's field manual on the law of war states that defectors 
should not be treated as prisoners of war. (The British War Office, The Law of War on Land being Part 
III of the Manual of Military Law (London: Her Majesty's Stationery Office, 1958), par. 126). U.S. policy, 
derived from the same treaty provisions, is the opposite (Howard S. Levie, International Law Studies v. 59: 
Prisoners of War in International Armed Conflict (Newport, RI: Naval War College Press, 1979), p. 80). For 
differences between the British manual and the U.S. counterpart, see R.R. Baxter, "The Cambridge 
Conference on the Revision of the Law of War", Am. Journal of Int'l Law, v. 47, p. 702 (1953). 

19. Dissemination via military manuals is an encouraged means. See, International Committee of the 
Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 
(Geneva: Martinus Nijhoff, 1987), p. 963 [hereinafter cited as Commentary]. 

20. The International Committee of the Red Cross [hereinafter ICRC] regularly attempts to define 
"credible fashion" in its publications and training programs. See, e.g., ICRC, Dissemination of International 
Humanitarian Law and of the Principles and Ideals of the Red Cross, XXIVth ICRC Conference (1981). The ICRC 
publishes a monthly periodical on the dissemination of international humanitarian law entitled Dissemination. 
It also organizes courses for teaching humanitarian law throughout the world. See "Dissemination Among 
the Armed Forces", Dissemination, April 1985, p. 2. 

ICRC conferences which have stressed the necessity of dissemination include: Centenary Congress, 1963, 
Resolution IV; XXth International Conference of the Red Cross, 1965, Resolution XXI; XXIst 
International Conference of the Red Cross, 1969, Resolution IX; XXIInd International Conference of 
the Red Cross, 1973, Resolution XII; XXIIIrd International Conference of the Red Cross, 1977, Resolution 
VII; XXIVth International Conference of the Red Cross, 1981, Resolution X. 

A notable exception to the groups successfully targeted by the ICRC dissemination program has been 
the armed forces of Warsaw Pact countries. See Independent Commission on International Humanitarian 
Issues, Modern Wars: The Humanitarian Challenge (Atlantic Highlands, NJ: Zed Books, 1986), p. 174. 

21. For an example of the potential long-term effects of written manuals on surveillance, see Military 
and Paramilitary Activities In and Against Nicaragua (Nicar, v. U.S.), 1986 I.C.J. 14, pars. 113 and 122 
(merits 27 June 1986) (Court finding that CIA supplied FDN with a 1983 manual of psychological guerrilla 
warfare which advocated certain violations of international law). 

Written statements can also focus critical attention on a nation if legal norms espoused in writing are 
later rejected. A state may lose the benefit of not signing a specific treaty or convention if it later 
promulgates regulations which comport with the norms therein. 

22. The ICRC regularly participates in programs to promote the dissemination of international 
humanitarian law throughout the world, often in collaboration with the Henry Dunant Institute or the 
International Institute of Humanitarian Law. See supra note 20. 

23. The point bears emphasis. Genuine humanitarian concerns might cause a soldier to disobey a national 
legal requirement, but international law will probably be ineffective in doing the same. Indoctrination 
and training of military personnel is such that few would ever consider elevating international law over 
national law, especially during war. Superordination must therefore take place within the national system; 
national law, with its more immediate and effective sanctioning, must be made to reflect accepted 
international norms. 



16 Law of Naval Operations 

24. Military discipline can be said to serve the dual function of ensuring that orders are carried out 
expeditiously and in accordance with the law. See AFP 110-31, supra note 15, pp. 1-5, pars. 1-3. A graphic 
example of this latter function with respect to the law of armed conflict is found in article 44 of the 
"Lieber Code" of 1863: 

All wanton violence committed against persons in the invaded country, all destruction of property 
not commanded by the authorized officer, all robbery, all pillage or sacking, even after taking 
a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited 
under the penalty of death, or such other severe punishment as may seem adequate for the gravity 
of the offense. 

A soldier, officer or private, in the act of committing such violence, and disobeying a superior 
ordering him to abstain from it, may be lawfully killed on the spot by such superior. 

Secretary of War, General Orders No. 100, "Instructions for the Government of Armies of the United 
States in the Field", 24 April 1863, reprinted in Richard Shelly Hartigan, Lieber's Code and the Law of War 
(Chicago: Precedent Publishing, 1983), p. 54. 

See also Calley v. Callaway, 519 F.2d. 184 (1975), cert. den. 425 U.S. 911. Lieutenant Calley's court martial 
demonstrates one answer to the need for an enforcement scheme in the post-Nuremburg world of limited 
conflicts. Several provisions in the Uniform Code of Military Justice parallel or may implicate international 
humanitarian law. See, e.g., art. 90 (Assaulting or willfully disobeying superior commissioned officer); 
art. 92 (Failure to obey order or regulation); art. 93 (Cruelty and maltreatment); art. 97 (Unlawful 
detention); art. 99 (Misbehavior before the enemy); art. 102 (Forcing a safeguard); art. 103 (Captured 
or abandoned property); art. 104 (Aiding the enemy); art. 105 (Misconduct as prisoner); art. 106 (Spies); 
art. 106a (Espionage); art. 116 (Riot or breach of peace); art. 118 (Murder); art. 119 (Manslaughter); art. 
120 (Rape and carnal knowledge); art. 121 (Larceny and wrongful appropriation); art. 122 (Robbery); 
art. 124 (Maiming); art. 125 (Sodomy); art. 126 (Arson); art. 127 (Extortion); art. 128 (Assault); art. 129 
(Burglary); art. 130 (Housebreaking); art. 134 (General article). Uniform Code of Military Justice, 10 
U.S.C. sections 801-940 (1982 and Supp. IV 1986). If other states do not apply similar domestic enforcement 
schemes, dissemination of content is likely to be ineffectual. 

25. Policies must be determined well before conflict but may be substantially based on expectations 
regarding a potential adversary's likely conduct during a future encounter. Since the midst of combat 
is too late for identifying pathologies or specific norms which are destined for nullification, we can only 
look to "actions" which incorporate or manifestly demonstrate intent to obey (e.g. disarmament and/ 
or dissemination). The centrality of expectations of reciprocity is dramatic in U.S. policy regarding 
chemical weapons. See Handbook, supra note 10, par. 10.3.2.1. The failure to reject second use of such weapons 
illustrates the deleterious effect on the norm caused by expected deviations. 

26. It is worth noting that the Soviet Union claims to comply with Geneva Convention obligations 
to disseminate norms. See I. Blishchenko and V. Grin, International Humanitarian Law and the Red Cross 
(Moscow: Executive Committee of the Order of Lenin Alliance of Red Cross and Red Crescent Societies 
of the USSR, 1983), p. 36. (the authors state, "[t]he members of the Soviet Armed Forces study the 
provisions of international humanitarian law regularly and systematically. . . . All members of the Armed 
Forces are familiarized with the texts of the Geneva Conventions. . . . The officer corps thoroughly study 
the provisions of international humanitarian law." Id., p. 39. For an extensive compilation of various state 
claims regarding dissemination see ICRC, Dissemination of Knowledge and Teaching of International Humanitarian 
Law and of the Principles and Ideals of the Red Cross, Answers from Governments and National Societies to the I. C.R. C. 
Questionnaire, XXIVth ICRC Conference, (1981) [hereinafter cited as Answers]. 

27. It is important to differentiate those norms which are based primarily on reciprocity and those which 
are not. Where absolutist concepts animate a construction of the rules, they will justify adherence regardless 
of reciprocity. Some norms will be upheld for good order and discipline or to prevent grossly uncivilized 
behavior. See, Thomas Nagel, "War and Massacre" in Charles R. Beitz, et al., eds., International Ethics 
(Princeton, NJ: Princeton University Press, 1985), pp. 53-74. Internalizing norms within the rank-and- 
file can thus have an effect even outside of reciprocal agreement. 

28. Even if a norm has been adopted, lack of a written manual greatly reduces the costs involved in 
later disavowing it. Expectations therefore cannot be drawn. 

29. Trials of War Criminals Before the Nuremburg Military Tribunal (Washington: Government Printing Office, 
1950), v. XI, p. 1237. The effect of this dictum is unfortunately blurred since its focus was the incompetence 
of regulations in authoritatively defining international law. The statement defeats a defense claim that 
U.S. Army Regulations encouraged obedience even to unlawful orders. 

30. See Robert W. Tucker, Naval War College International Law Studies, 1955: The Law of War and Neutrality 
at Sea (Washington: Government Printing Office, 1957), p. 26. 

31. The Scotia, 81 U.S. (14 Wall.) 170 (1871). 



Reisman and Leitzau 17 

32. Cooperative intergovernmental efforts in the development of manuals may assist in the process of 
international norm formulation. See Baxter supra note 18 (discussing collaborative efforts between the 
United States and Great Britain in updating army field manuals). 

33. There seems to be little evidence that systematic comparisons are being made in the United States. 
The ICRC has been actively monitoring disseminations however. See Answers supra note 26; and 
International Institute of Humanitarian Law in San Remo, Annexe documentaire (1972) (containing extracts 
from the Federal Republic of Germany Military Instruction Manual, the U.S. Field Manual, the French 
Regulations on general discipline in the armies, the British Manual of Military Law, the Italian "Law 
of War" and the Swiss Manual on Laws and Customs of War). 

34. Kervyn de Lettenhove, ed., Oeuvres de Froissart (Brussels: 1869), tome VIII, p. 43, reprinted in M.H. 
Keen, The Laws of War in the Late Middle Ages (London: Routledge and Kegan Paul, 1965), p. 1 (treatment 
of early codes and the principles of chivalry). 

35. Kuhn, "Responsibility for Military Conduct and Respect for International Law," Dissemination, 
August 1987, p. 1. See also, William E.S. Flory, Prisoners of War (Washington: American Council on Public 
Affairs, 1942), pp. 10-15 (discussing treatment of prisoners in ancient and medieval times). 

36. See Flory supra note 35. See also Keen supra note 34. 

37. Intergovernmental communication of manuals has been specifically encouraged by the ICRC See 
Commentary, supra note 19; International Institute of Humanitarian Law supra note 33. 

38. "Statement of Senator Goldwater," Congressional Record, 6 June 1976, p. S17551. 

39. The ICRC has historically been extremely active in promoting dissemination of the law of armed 
conflict. Indeed, the ICRC proposed a third paragraph to article 83 of the 1977 Protocol (I) to the 1949 
Geneva Conventions which read: "The High Contracting Parties shall report to the depositary of the 
Conventions and to the International Committee of the Red Cross at intervals of four years on the measures 
they have taken in accordance with their obligations under this article." Commentary, supra note 19, p. 
961, n. 15. The proposal was defeated in plenary. Id., p. 963. The ICRC has begun soliciting dissemination 
reports despite the failure to obtain a provision mandating them. See Answers supra note 26. 

40. Bickel was quoting Namier in an address originally delivered in the 1969 Oliver Wendell Holmes 
Lecture series at Harvard Law School, reprinted in Alexander Bickel, The Supreme Court and the Idea of Progress 
(New York: Harper and Row, 1970), p. 13. 

41. Legal limits on belligerent conduct are often described as being delineated by three principles: 1) 
military necessity (justifying the amount and kind of force necessary to achieve submission of the enemy 
with minimal expenditure of human and material resources); 2) humanity (prohibiting all force not 
necessary for military purposes); 3) chivalry (prohibiting resort to dishonorable means). See Adam Roberts 
and Richard Guelff, eds., Documents on the Laws of War (Oxford: Clarendon Press, 1982), p. 5; Myres S. 
McDougal and Florentino P. Feliciano, Law and Minimum World Public Order (New Haven, CT: Yale 
University Press, 1961), pp. 521-30; Denise Bindschedler-Robert, "A Reconsideration of the Law of Armed 
Conflicts," in Conference on Contemporary Problems of the Law of Armed Conflicts, Report, (New York: 
Carnegie Endowment for International Peace, 1971), pp. 14-16; Morris Greenspan, The Modern Law of 
Land Warfare (Berkeley, CA: University of California Press, 1959), pp. 313-16. 

42. Consider, for example, recent attacks on Iranian oil platforms. Communication resources enabled 
the entire action to be directed from the White House. Julie Johnson, "Before the Order for Retaliation, 
a Major Effort to Woo Congress", New York Times, 19 April 1988, p. Al:4. 

43. The same technological advances have also multiplied the number of situations a commander might 
confront. The utility curve for any given instruction or manual must consider the downside of such 
voluminous treatment. 

44. See Paul Bracken, The Command and Control of Nuclear Forces (New Haven, CT: Yale University Press, 
1983), pp. 219-20. 

45. See Joseph Metcalf, III, "Decision Making and the Grenada Rescue Operation," in James G. March 
and Roger Weissinger-Baylon, Ambiguity and Command (Marshfield, MA: Pitman Publishing, 1986), pp. 
277-97 (demonstrating the continued need for relevant decision-making at various levels of the chain of 
command). See also Col. William G. Eckhardt, "Command Criminal Responsibility: A Plea for a Workable 
Standard," 97 Mil. L. Rev. 1 (1982) (examining the criminal responsibility of superiors for subordinate 
misconduct and the need for effective legal standards of professional military conduct). 

46. Renunciation of War as an Instrument of National Policy, 27 August 1928, 46 Stat. 2343, U.S.T.S. 
796, 94 L.N.T.S. 57. 

47. See Michael Howard, "Temperamenta Belli: Can War Be Controlled?" in Michael Howard, ed., 
Restraints on War (Oxford: Oxford University Press, 1979) (arguing that the historical success of rules 
depended on the limited nature of relevant conflicts); Elaine Scarry, The Body in Pain (New York: Oxford 
University Press, 1985) (criticizing total war); Flory supra note 35, p. 9 (many rules become inapplicable 
in total war). 



18 Law of Naval Operations 

48. Carl Von Clausewitz, On War (M. Howard and P. Paret trans.) (Princeton, NJ: Princeton University 
Press, 1976), p. 76. But cf. Michael Walzerjwsf and Unjust Wars (New York: Basic Books, 1977). 

It may be appropriate to note that rational explanations have been suggested for the validity of many 
of the laws of warfare. Absolutist concepts and natural law arguments would favor adhering to 
international norms of warfare without regard to adversary compliance. See Nagel supra note 27. In some 
cases utilitarian arguments justify complying with certain rules even from a unilateral perspective. See 
R.B. Brandt, "Utilitarianism and the Rules of War," Philosophy and Public Affairs, Winter 1972, p. 145. 
Cf. N.W. Royse, Aerial Bombardment and the International Regulation of Warfare (New York: Harold Vinal, 
1928) (predicting that only ultimate utility will be able to constrain aerial bombardment). Attention here 
is directed to the "problem rules" - rules which disallow a tactically prudent or strategically advantageous 
course of action. In extreme situations it is these rules which are in danger of being violated, and it is 
these rules which publication in manuals might help to safeguard. 

49. Consider the vain attempts to control air power and submarine warfare prior to World War II, 
e.g., the 1923 Hague Rules of Aerial Warfare (Department of State, Papers Relating to the Foreign Relations 
of the United States, 1923 (Washington: Government Printing Office, 1938), v. I, p. 73; American Journal of 
International Law (Supp.), v. 17, p. 245 (1923); id., v. 32, p. 12 (1938); the Proces- Verbal of 6 November 
1936 Relating to the Rules of Submarine Warfare Set Forth in Part IV of the London Naval Treaty of 
1930 (3 Bevans 298, 173 L.N.T.S. 353). 

50. The import of this ramification obviously depends on the specific situation. If violating a norm 
requires little additional training or is not particularly offensive to subordinate parties, the manual 
limitation will be minimal. 

51. Consider, for example, a chemical weapon system capable of being deployed via long-range cruise 
missiles. An agreement to prohibit the use of such weapons is meaningless, even if effectively disseminated, 
as long as the weapons exist in operational form and military organizations are prepared to employ them. 
An elite decision to ignore the agreement would only incur international political costs, as opposed to 
the more immediate concerns of reprogramming an entire military community. 

52. See, James D. Atkinson and Donovan P. Yeuell, "Must We Have World War III?", U.S. Naval 
Institute Proceedings, July 1956, p. 711; Morton H. Halperin, Limited War in the Nuclear Age (New York: John 
Wiley and Sons, 1963). 

53. E.g., U.S. punitive raids against Libya, the Grenada invasion, the Israeli preemptive attack on an 
Iraqi nuclear facility, Chinese attacks on Vietnam, recent U.S. attacks on Iranian oil platforms. 

54. For a didactic illustration of the effect of the Geneva Conventions on a limited conflict, see ICRC, 
Protection of Victims of Armed Conflict, Falkland-Mahinas Islands (1984) (discussion of humanitarian law as it 
applies to the conflict). See also Sally V. Mallison and W. Thomas Mallison, Armed Conflict in Lebanon, 
1982: Humanitarian Law in a Real World Setting (Washington: American Educational Trust, 1983) (discussion 
of humanitarian law applied to the invasion of Lebanon). 

55. See Walter Laqueur, Guerrilla (London: Weidenfeld and Nicolson, 1976) (guerrilla warfare generally); 
Walzer, supra note 48, pp. 176-96 (humanitarian law applied to guerrilla warfare). 

56. See Keith Suter, An International Law of Guerrilla Warfare (New York: St. Martin's Press, 1984) 
(discussing lack of progress in drafting rules for guerrilla warfare); Lewy, supra note 16, pp. 223-70 
(provisions of Geneva conventions found inapplicable in many situations due to problematic tactics used 
in Vietnam conflict). It is in this type of combat that the U.S. refusal to accept Protocol I to the 1949 
Geneva Conventions may have the most impact, since the Protocol changes requirements for prisoner- 
of-war status. 

57. See Amir Taheri, The Holy Terror: Inside the World of Islamic Terrorism (Bethesda, MD: Adler and Adler, 
1987). For historical background see Bernard Lewis, The Assassins: A Radical Sect in Islam (New York: Basic 
Books, 1968). For contemporary application see Arsanjani, "The Impact of Islamic Fundamentalism on 
International Politics and Law", American Society of International Law: Proceedings, 1988, p. 82 (forthcoming). 



Oxman 19 



Chapter II 

International Law and 
Naval and Air Operations at Sea 

by 
Bernard H. Oxman* 



Introduction 

T' he publication of The Commander's Handbook on the Law of Naval Operations 
(NWP-9) is a suitable occasion for reconsidering the relationship 
between international law and naval and air operations at sea in times of 
peace. 1 

The Handbook is replete with articulations of specific rules and principles 
of the law of the sea that may be of use to the naval or air commander. Its 
purpose is "general guidance" and "not a comprehensive treatment of the 
law." 2 The rules and principles it articulates relating to navigation and 
overflight are expressly based on those set forth in the 1982 United Nations 
Convention on the Law of the Sea, 3 "[ajlthough not signed by the United 
States and not yet in formal effect." 4 The Handbook could hardly be 
significantly more faithful to the text of the Convention 5 had the United States 
ratified the text of the Convention and Congress enacted penalties for its 
violation. 

Still the Handbook contains interesting innovations not found in the 
Convention. For example, use of the terms "national waters" and 
"international waters" 6 was doubtless designed to facilitate an explication 
to the non-expert of the law of naval and air operations in the exclusive 
economic zone. 7 If the summa divisio between "national" and "international" 
waters persists as such in coastal areas — a matter open to some doubt — it 
might be useful for the commander to know that the classifications set forth 
in the Handbook might prove controversial. Unlike the authors of the Handbook, 
some coastal states would regard the exclusive economic zone as falling within 
the former category and at least some commentators might regard 
international straits (and comparable archipelagic sealanes) as falling within 
the latter category. 

Another arguable innovation is the concept of "assistance entry" into the 
territorial sea. 8 The concept is appropriately rooted in the ancient duty of 



20 Law of Naval Operations 

mariners "to assist those in danger of being lost at sea." 9 Although the Law 
of the Sea Convention does not expressly address the question of entry into 
the territorial sea for the purpose of rescue, textual support can be found 
in the newly articulated and analogous principle of the Convention that 
permits stopping and anchoring while in innocent passage through the 
territorial sea "for the purpose of rendering assistance to persons, ships or 
aircraft in danger or distress." 10 In the principle that the sovereignty of the 
coastal state over the territorial sea is subject to other rules of international 
law, 11 and in the principle that the coastal state's rights and jurisdiction must 
be exercised in a manner which would not constitute an abuse of right, 12 one 
can find ample basis for concluding that the coastal state's rights must be 
interpreted in light of the ancient duty to rescue, and that the coastal state 
is presumed to consent to bona fide efforts to rescue those in danger of being 
lost at sea. 

Probably in order to avoid too much confusing detail, the Handbook is also 
less than complete on the question of straits overlapped by internal waters. 13 
Article 35(a) of the Law of the Sea Convention makes it clear that the regime 
of straits applies to internal waters established by a system of straight baselines 
in accordance with the Convention where the waters enclosed were not 
previously considered internal (that is they would not be regarded as juridical 
bays, for example). Why then, except perhaps for reasons of economy of text, 
is overflight excluded from transit passage of such straits? 14 Why is the 
discussion of international straits essentially limited to "International Straits 
Overlapped by Territorial Seas?" 15 

All (or at least almost all) of this is as it should be. Taken as a whole, the 
Handbook should achieve its purposes admirably. This writer has expressed 
his specific views on the legal rules governing naval and air operations at 
sea elsewhere, and will not repeat them here. 16 

What the Handbook does not address, or addresses only in passing, is why 
those concerned with naval and air operations at sea should be concerned 
with the international law of the sea. Such an analysis is probably beyond 
the scope of a handbook of the kind addressed here. But the analysis is essential 
if one is to understand what one is probably reading, and why one is reading 
it, when one refers to the Handbook. 



The Duty to Obey International Law 

From the perspective of the naval commander, a fairly simple answer can 
be posed to the question, "Why worry about international law?" As the 
Handbook notes, 17 article 0605 of U.S. Navy Regulations, 1973, states: 



Oxman 21 

At all times, a commander shall observe and require his command to observe the 
principles of international law. Where necessary to the fulfillment of this responsibility, 
a departure from other provisions of Navy Regulations is authorized. 

The Handbook also attempts an explanation of the underlying reasons for 
this duty: 

International law provides stability in international relations and an expectation that 
certain acts or omissions will effect predictable consequences. If one nation violates the 
law, it may expect that others will reciprocate. Consequently, failure to comply with 
international law ordinarily involves greater political and economic costs than does 
observance. 18 

The Handbook does not stop there however. It ventures into the complex 
world of law and interest when it states, "In short, nations comply with 
international law because it is in their interest to do so." 19 This sentence is 
not without its ambiguities. Legal restraints are of particular significance 
when one perceives an interest in ignoring those restraints. What the authors 
presumably mean is that the interest in observing international law ordinarily 
outweighs the perceived interest in acting otherwise in a particular instance. 

The brief discussion concludes with a declaration at once as terse and as 
pregnant as one is likely to encounter: "Like most rules of conduct, 
international law is in a continual state of development and change." 20 
Nothing at all is said about the role of the Handbook itself in this process. 
As for the role of naval and air forces, the Handbook asserts: 

When maritime nations appear to acquiesce in excessive maritime claims and fail 
to exercise their rights actively in the face of constraints on international navigation 
and overflight, those claims and constraints may, in time, be considered to have been 
accepted by the international community as reflecting the practice of nations and as 
binding upon all users of the seas and superjacent airspace. Consequently, it is incumbent 
upon maritime nations to protest through diplomatic channels all excessive claims of 
coastal or island nations, and to exercise their navigation and overflight rights in the 
face of such claims. The President's Oceans Policy Statement makes clear that the U.S. 
has accepted this responsibility as a fundamental element of its national policy. 21 

What the Handbook appears to be saying is that because the law may evolve 
and change, it is important for the United States to influence that process, 
where appropriate, using its naval and air forces to that end. More than that, 
the Handbook appears to be used to resist attempts by other states to change 
the law, particularly "excessive maritime [presumably coastal state] claims" 
and "constraints on international navigation and overflight." The "law" that 
the United States will defend is expressly identified with the rules of the Law 
of the Sea Convention affecting navigation and overflight rights. 

We have now moved beyond a mere duty to respect international law as 
it is now or as it may evolve in the future. The law of the sea, at least that 
part of it governing naval and air operations at sea, has itself become an object 
of those operations. Why? 



22 Law of Naval Operations 

International Law and Large Navies 

Large navies operate around the world. Their ships approach or enter the 
territory of many states. Their operations are subject to scrutiny within their 
own government and legislature, by their own press and public at least in 
democratic states, and by the governments, press and people of foreign 
countries, whether friendly or hostile. Alone or in combination, every one 
of these groups has some actual or potential influence on the ability to define 
naval missions and to carry them out. The question of whether they should 
have such influence is beside the point. 

Few naval missions (other than purely humanitarian assistance) are likely 
to be applauded by everyone. Even a peaceful visit to a port of a friendly 
country may be an implicit warning to others. The capacity to define and 
carry out naval missions is maximized if one maximizes the number of people 
with influence over the definition or execution of the mission who believe 
that: 

(1) the specific mission is desirable; 

(2) navies should have the right to conduct that kind of activity in the 
manner undertaken; and 

(3) navies do have the right to conduct that kind of activity in the manner 
undertaken. 

Human nature being what it is, there is some likelihood that an individual 
who falls within group 1 will also fall within group 2, and that an individual 
who falls within group 2 will also fall within group 3. However, not everyone 
who falls within group 1 or even 2 will necessarily fall within group 3. For 
example, some people who believe that Israel's rescue of hostages in Entebbe 
or even its raid on the Iraqi nuclear reactor were, if viewed in isolation, 
desirable, also believe that such intrusions into the territory of a foreign state 
are (and should be) of doubtful legality. 

Moreover, what if a significant number of people with actual or potential 
influence over the definition or execution of the mission do not believe that 
the specific mission, or its mode of execution, is desirable? The objective in 
that case to achieve their acquiescence is facilitated (but by no means 
guaranteed) if they are persuaded either that the navy should, or that it does, 
have a right to carry out the mission in the manner contemplated. 22 To put 
the matter differently, the political, economic or military resources that must 
be expended to achieve acquiescence are minimized, and often eliminated, 
if those whose acquiescence is sought believe a navy does or should have a 
right to undertake the action in the manner contemplated. 23 

Since no government's political, economic, or military resources are 
unlimited, the more costly it is to achieve acquiescence, the more limited 
are a government's options to choose and execute its naval missions. 



Oxman 23 

Accordingly, perceptions of what the law is or should be by people with 
influence over the definition or execution of the mission have a real influence 
over the range of a government's naval options. 

Whose Acquiescence is Important? 

For purposes of this analysis, a naval or air mission might be divided into 
three parts: the objective, the means, and the logistics. 

We might assume, for example, that the proposition up for decision is 
delivering a warning to some government or group in the eastern 
Mediterranean region designed to deter violence or escalation of violence on 
land or at sea. We might assume further that the means under consideration 
are a substantial augmentation of naval presence in the eastern Mediterranean 
Sea. Finally, we might assume that the augmentation would require the 
movement of ships from the Atlantic Ocean and perhaps the Indian Ocean, 
the former through the Strait of Gibraltar and the latter through the Strait 
of Bab-el-Mandeb and the Suez Canal. 

The classic argument for maintaining and using a large surface navy in this 
manner is nicely summarized in the Handbook: 

Depending upon the magnitude and immediacy of the problem, naval forces may be 
positioned near areas of potential discord as a show of force or as a symbolic expression 
of support and concern. Unlike land-based forces, naval forces may be so employed 
without political entanglement and without the necessity of seeking littoral nation 
consent. 24 

Three aspects of this statement require emphasis. First, it is normally 
assumed that the naval forces will be positioned "near areas of potential 
discord," that is near land, and may engage in naval maneuvers once there. 25 
This is true whether one wishes to influence the behavior of regular or 
irregular land forces or the behavior of armed ships or boats likely to operate 
mainly in coastal areas. Second, it is normally assumed that some 
"positioning" in response to the specific mission is required, i.e. that the ships 
will have to be moved into position from elsewhere. Third, it is assumed that 
the positioning may be achieved "without political entanglement and without 
the necessity of seeking littoral nation consent." 

Taken together, these assumptions presuppose the acquiescence of three 
different classes of foreign states. The first class comprises the state or states 
near whose coast the force will be positioned. The second class consists of 
the state or states off whose coast the ships will navigate en route to their 
position. The third class embraces other states with global or "blue water" 
navies. 26 

Let us assume that states in all three classes either oppose, do not wish to 
support, or do not wish to appear to support the mission. The question then 



24 Law of Naval Operations 

becomes one of acquiescence. The various classes of states will be examined 
in reverse order in this connection. 

1. Other Naval Powers 

Much attention is normally devoted to the third class and, in particular, 
the Soviet Union. History has demonstrated that the United States and Soviet 
navies and air forces, notwithstanding occasional lapses into pubescent 
behavior, 27 are reluctant to engage each other far from their shores (and 
exercise at least relative caution even in their own waters). The reaction of 
other major naval powers is therefore ordinarily a political rather than strictly 
military consideration, although one must of course bear in mind that political 
cost may reduce one's flexibility to undertake a mission. 

Moreover, because the same rules normally apply to all, it may be assumed 
that governments with large navies generally believe all states have, or should 
have, the right to do what large navies generally do. In other words, much 
as the Soviet Union may dislike a particular United States naval mission in 
the eastern Mediterranean Sea, or the United States may dislike a particular 
Soviet naval mission in the Caribbean Sea, each is likely not only to concede 
(albeit privately) the legal right of the other to do what it is doing, but perhaps 
even welcome (albeit silently) the augmentation of state practice in support 
of the kinds of operations large navies undertake. 28 

From this analysis, one may draw at least the following inferences regarding 
the effect of the international law of the sea on the acquiescence of other 
naval powers' in operations off the coasts of third states. The naval powers 
have no desire to engage each other directly. The law of the sea would appear 
to be relevant to the degree of acquiescence obtained from other naval powers 
in two different ways. If the naval powers disagree on what the law of the 
sea rules are or should be, and that disagreement involves the question of 
whether there has been an incursion on the territory or rights of a third state 
by the naval power undertaking the mission, the disagreement could force 
a more severely negative reaction by the other naval power either in principle 
or because of political or defense commitments to the third state. Conversely, 
if the naval powers agree on what the law of the sea rules are, and those 
rules are observed, the perception that the power undertaking the mission 
is within its rights — and that other naval powers wish to preserve the right 
to do the same thing elsewhere — may increase the degree of acquiescence, 
that is dampen the political opposition. 

This is the first illustration of a basic point central to the relationship 
between the law of the sea and naval and air operations at sea: to the extent 
that the law of the sea is relevant to the question of acquiescence by a foreign 
power, its relevance depends not on what the naval power undertaking the 
mission believes its rights to be, or even on whether that belief is well founded 



Oxman 25 

in law, policy or good morals, but rather on whether the powers concerned 
agree or disagree with each other on what the rules are. 

2. States Off Whose Coast Ships Will Navigate En Route to Their Position 

The Handbook assumes that ships will be able to navigate to their intended 
position "without political entanglement and without the necessity of seeking 
littoral nation consent." In this case, the reference is therefore to the 
acquiescence of states off whose coasts ships will navigate en route to their 
position. In this connection, the political, military, and psychological question 
of what constitutes a route close to the coast of another country must be 
distinguished from the strictly legal question of what rights a state may claim 
and exercise in waters off its coast. For purposes of this analysis, the 
acquiescence of a state "off whose coast" one must navigate is relevant if 
that state has the means and the will to disrupt, or otherwise increase the 
political, economic or military cost of, the mission. 

A route close to land may be selected because of geographic necessity. For 
example, a ship cannot enter or leave the Mediterranean Sea without 
traversing a strait (or canal) at some point. Some seas are so constricted that 
one is rarely far from land. A route close to land may be selected for reasons 
of safety or weather. It may also be selected because it is substantially shorter 
and more convenient than an alternative route. The same considerations may 
apply in the case of military aircraft where consent to overfly land territory 
is unavailable. 29 

The acquiescence of states along a selected route therefore affects the 
mobility of naval forces as well as the mobility of air forces for which consent 
to overfly land territory is unavailable. Such acquiescence affects naval and 
air transports in the same way, whether used to move ground or amphibious 
forces or to deliver material to friendly foreign forces. The number of states 
potentially involved is large and difficult to predict. It depends on the location 
of possible missions, the location of ships when assigned such missions, and 
the routes selected. 

In considering the implications of this problem, one must bear in mind that 
states do not have balanced bilateral reciprocal interests in the right to 
navigate off each other's coast without consent. 30 

One reason for the imbalance relates to geographic position. Not many 
states have an overwhelming interest in navigating close to the coast of the 
United States without consent, despite the enormity of the UnitecLStates 
coastline. Many would perceive a far greater interest in navigating close to 
England and France, Spain and Morocco, Greece and Turkey, Oman and Iran, 
or Singapore, Indonesia and Malaysia. 

Another reason for the imbalance relates to naval capacity, defense 
strategy, and foreign policy. Very few states maintain global navies or a 



26 Law of Naval Operations 

defense strategy or foreign policy that entails deployment of their navies at 
great distances from their own shores. While it is true that a significant 
number of states rely, explicitly or implicitly, on the mobility of a global 
navy for protection from another global power or ambitious regional powers, 
not many are likely to attach a high priority to this interest without insistent 
reminders from their naval ally. Moreover, in some regions, particularly semi- 
enclosed seas, it is fashionable to believe that elimination of the right of 
warships (of global navies) to navigate in the region would, by removing the 
great naval powers, promote peace and stability. These views are sometimes 
inspired by regional powers whose ambitions may be held in check by the 
actual or potential presence of a global navy. 

The significance of the imbalance means that unlike other naval powers, 
states along the route taken to a mission position will not necessarily perceive 
a strong interest (if any) in the proposition that navies should generally have 
the right to navigate close to the coast in order to take the necessary or most 
convenient route to their mission destination. Thus, to the extent one wishes 
to encourage their acquiescence in the use of the route off their coast, one 
must often rely more on their perception of what the law is than on their 
perception of what the law should be. 

The acquiescence of this particular group of states is central to any concept 
of flexibility to deploy forces at sea. Prudence requires the planner to 
anticipate that a naval force may provoke political resistance and retaliation, 
or even armed resistance, once the force reaches its mission position 
(especially when the very purpose of the mission is to deter violent behavior 
by those in the region). But what if, even in peacetime, the decision-maker 
must deal with such contingencies not only at the mission destination but in 
connection with the movement of ships to their destination? 

Several methods for promoting acquiescence are possible. One is the threat 
of armed resistance or retaliation. A cost of this approach is that every naval 
mission then requires the potential diversion of additional military resources 
to yet another mission, namely defense of the means to reach the mission 
destination. In addition, the political or economic costs of threatening friends 
and the military costs of threatening adversaries may be too high. 

Another method is the threat of economic retaliation. Such retaliation is 
in fact more difficult than it appears. Those responsible for international trade 
policy can be expected to resist interference with trade either in principle 
or because the United States as well as the target state would be hurt. 

Moreover, absent an extreme emergency, forceful military or economic 
measures are unlikely to be used unless those individuals with substantial 
influence over decisions by the government of a major naval power believe 
there is a legal right to use the route in question. In other words, before one 
can effectively pressure the foreign state to acquiesce, one must have 
persuaded one's domestic constituency of the right to use the route. That 



Oxman 27 

constituency will include all relevant participants in government decision- 
making (including defense and foreign ministry lawyers), members of the 
legislature, informed and influential members of the public, and at least some 
influential friendly foreign leaders. Therefore, even if one chooses to ignore 
international law as such as the means to obtain acquiescence from the foreign 
states concerned, one would probably need to use international law to 
persuade the relevant domestic constituency to threaten military or economic 
retaliation. 

One also may purchase acquiescence. Those familiar with the full political, 
military, and economic costs of some base-rights agreements could doubtless 
appreciate what it would cost to buy, on a bilateral basis, acquiescence in 
the right to navigate along all foreign coasts likely to lie astride the approaches 
to possible mission destinations. As previously noted, very few states would 
perceive a reciprocal interest in the right to operate warships (or even 
merchant ships) off the United States coast. Most would wish something in 
return that they would not otherwise receive; many would insist that the value 
to them of what is received be comparable to the value to the United States 
of the mobility of its naval forces; a goodly number would reserve an explicit 
or implicit right to renegotiate terms or end the arrangement; and some would 
refuse (or would be forced by political pressures to refuse) to deal at any 
conceivably acceptable price. 31 One must also bear in mind that purchasing 
(agreeing bilaterally on the existence of) rights to navigate in one place 
arguably implies that exercising such rights in similar areas elsewhere requires 
agreement of the coastal state. 

This analysis suggests that the international law of the sea would be a useful 
tool in helping to induce the acquiescence of foreign states lying along the 
route to a particular mission. A variety of tactical considerations reinforce 
this conclusion. 

While the number of states that perceive a direct interest in the global 
mobility of warships may be small, the number that perceive an important 
interest in the free movement of international trade by sea is quite large. By 
linking the two in a single principle of freedom of navigation or free transit 
of straits, one can substantially increase the number of governments that 
believe all ships (and therefore warships) should have a right to navigate along 
the coast where necessary to reach their destination. 

Some governments would have difficulty gaining domestic acceptance of 
the premise that all warships, or warships of a particular state, have been 
accorded a right to navigate off the coast. Their capacity to act on the basis 
of such a premise is enhanced if the right is not localized, but rather derives 
from a global rule applicable to all similarly situated coastal states 
everywhere. 

This being said, we must recall the object of the exercise: inducing the 
acquiescence of states lying along the routes used to reach the mission 



28 Law of Naval Operations 

destination despite their opposition to, or unwillingness to support, the mission 
itself. This is then the second illustration of the basic point, referred to earlier, 
central to the relationship between the law of the sea and air operations at 
sea. 

The challenge then is to affect the perceptions of others as to what the 
law is (what some term their "expectations"). 

One way is to persuade them that the particular proffered rule of law serves 
their interests. The potential for using this approach has already been 
discussed. 

Another way is to rely on habit. There is some tendency to associate the 
factual status quo with the legal status quo. If your neighbor crosses your land 
regularly, you are more likely to believe that he has a right to do so or, perhaps 
more importantly, that you would be disrupting good-neighborly relations 
("legitimate expectations founded on custom") if you tried to stop him. Thus, 
whatever the theoretical relationship between a program of exercise of rights 
and the preservation of rights under international law, foreign states as a 
practical matter are more likely to acquiesce in activities off their coasts that 
occur regularly and without serious impairment of their interests. 

Still another way is to influence directly the foreign state's perceptions 
of legitimacy, that is, to operate from a platform of principle likely to be 
accepted by the foreign state in determining its own behavior. One thing is 
certain: a platform of principle unilaterally enunciated by the naval power 
(including its legislature and its domestic partisans) is not likely to be regarded 
by foreign states as "law" necessarily binding on them. 

To induce foreign acquiescence in navigation rights important to naval 
mobility, we must find propositions that: 

(1) are understood to allow activities important to naval mobility, and 

(2) are accepted as law by the states off whose coast one must navigate. 
The most commonly cited repository of such propositions is called 

customary international law, fairly defined by the Handbook as the "general 
and consistent practice among nations with respect to a particular subject, 
which over time is accepted by them generally as a legal obligation." 32 But 
if this is so, have we come full circle? 

The object of the exercise was to use law, rather than or in conjunction 
with other means, to induce foreign acquiescence at the lowest possible cost. 
Yet we are now told that this law rests on general and consistent practice 
among nations. Therefore, in order to ensure our first objective, namely that 
the law is understood to allow activities important to naval mobility, we will 
have to discourage states everywhere in the world from engaging in practices 
to the contrary. Whether we are especially interested in the actual or potential 
need to use an area off the coast of a particular state, we must discourage 
the emergence of new practices inconsistent with our view of what the 
relevant law is and needs to be. 



Oxman 29 

When we object to the change in practice, the foreign state could accurately 
quote the Handbook: "[L]ike most rules of conduct, international law is in a 
continual state of development and change." 33 The foreign state might add: 
If law changes, and if customary international law is rooted in general 
practice, then the only way customary law can change is if general practice 
changes, and the only way general practice can change is if someone starts 
the process alone. 

How then do we ensure that state practice is generally consistent with the 
existence of rights necessary to naval mobility? One way is by investing 
political, economic, and even military resources in the endeavor. This means 
that those concerned with the maintenance of an international law of the sea 
that encourages acquiescence of foreign states in naval operations must 
constantly persuade their colleagues in government that this is an objective 
worth the investment of national resources. Their task is not an easy one. 
The same people are frequently asking for money to acquire and maintain 
the ships and personnel necessary to have a navy. The political or economic 
costs of doing more than protesting adverse claims (practice) by a foreign 
coastal state are likely to be more immediate or apparent than the abstract 
erosion of a legal position. 

Another possibility is to place more direct emphasis on the element of 
acceptance of a legal obligation and less on practice. One example would 
be a treaty setting forth the relevant rules and accepted by all. This is exactly 
what was attempted in the negotiation of the United Nations Convention 
on the Law of the Sea. 34 But for serious disagreements on the question of 
mining of seabed hard minerals in areas beyond (at times well beyond) 200 
miles from any land, it appears that the Convention might have achieved very 
widespread ratification, thus by definition setting forth rules regarded by 
foreign states as legally binding on them. Moreover, since the Third United 
Nations Conference on the Law of the Sea, a very large number of states 
seem prepared to accept all or virtually all of the propositions set forth in 
the Convention as an authoritative source of law binding on all. 

The Handbook, the Statement of the President on United States Oceans 
Policy, 35 and other government statements represent an effort to use the treaty 
strategy under the rubric of customary international law. They declare that 
the propositions set forth in the U.N. Convention on the Law of the Sea reflect 
customary international law. Where the Convention text is sufficiently 
precise, legal argument is then largely confined to interpretation of the text 
as if it were a treaty, with little if any attention devoted to state practice. 
States that make claims or undertake activities regarded as inconsistent with 
the propositions set forth in the Convention are told that their activities are 
inconsistent with the Convention and therefore illegal under customary 
international law. 



30 Law of Naval Operations 

The reason for this approach is obvious. The propositions set forth in the 
Convention are generally understood to allow activities important to naval 
mobility. Because the Convention was negotiated largely by a consensus 
procedure over a long period of time with the participation of the entire 
community of states, it enjoys substantial legitimacy as a source of rules 
binding on all. Thus, from the perspective of naval mobility, there is nothing 
to gain and a great deal to lose by allowing inconsistent state practice to 
overtake the Convention as a source of law in any specific instance or, even 
more importantly, in principle. 

It is open to serious doubt whether a government that refuses to ratify the 
Convention, or even to renegotiate the objectionable deep seabed mining 
provisions, can succeed in the long run in persuading foreign governments 
to respect as law the provisions of the Convention affecting navigation, 
overflight and related naval activities. But the authors of the Handbook, 
compelled to accept that risk for the present, are almost certainly correct 
in concluding that treating the Convention as if it were a treaty in force for 
all, including positive "enforcement" of its provisions if need be, represents 
a policy regarding the law of the sea most likely to achieve the underlying 
naval objective: acquiescence by others in activities important to naval 
mobility at the lowest possible cost. 

It is in this context that the provisions of the Handbook regarding the exercise 
and assertion of navigation and overflight rights and freedoms might be 
understood. 36 The strategy for inducing foreign acquiescence in naval 
activities seems to be one of combining habit with the textual legitimacy of 
the Convention. The Convention serves a double function in this regard. First, 
it is the most plausible platform of principle from which to seek to encourage 
foreign acquiescence. Second, because of its international pedigree, it is the 
most plausible platform of principle from which to seek domestic support 
for a sometimes risky or costly program of exercise of rights and freedoms 
designed to establish a pattern, or habit, of naval activity around the world 
permitted by the Convention (at least as understood by the United States). 

3, States Neat Whose Coast the Force Will he Positioned 

Much of the analysis set forth in the previous section is relevant to the 
question of positioning forces off a state "without the necessity of seeking 
littoral state consent. ,, The most important new element is that the objective 
of deploying forces "without political entanglement" becomes a larger part 
of the equation. 

In principle, it is of course difficult to station a naval force off any area 
of actual or potential conflict "without political entanglement." Indeed, the 
very objective is "a show of force" or "a symbolic expression of support 
and concern." The key to the point being made in the Handbook is that 
'[ujnlike land-based forces," naval forces may be positioned near areas of 
potential discord without political entanglement. The salient difference 



Oxman 31 

would appear to be the possibility of positioning naval forces near areas of 
potential discord without introducing a military presence into the territory 
of a foreign state, particularly one that is the scene, object, or source of the 
discord. 

This facility can be important in two opposite situations. In one situation, 
the appearance of the naval force off the coast of a state may be designed 
as a warning to those threatening that state or its government. If the naval 
force is deemed to be located outside the coastal state and its consent is not 
required for the force to be positioned in the area, then both the coastal state 
and the naval power can reap the benefits of the force's presence without 
necessarily implying any political or military alliance or arrangement, and 
in particular without the stationing of armed forces of a major power on the 
territory of the state concerned. 

In another situation, the appearance of the naval force off the coast of a 
state may be designed as a warning to that very state's government. If the 
naval force is deemed to be located outside the coastal state and its consent 
is not required for the force to be positioned in the area, then the coastal 
state is in a position to react to the message as it deems best without the need 
to defend its territory from intrusion, while the naval power is in a position 
to send a very strong and direct message without necessarily entangling itself 
in armed hostilities. 

To an important degree, the positioning of the naval force in both of these 
scenarios depends on the coastal state's perception of the extent of its maritime 
territory and jurisdiction. In some circumstances, the political or military 
consequences of entering a maritime area claimed by the coastal state may 
be the same whether or not that claim is recognized by the naval power. 
If the purpose of the mission is to support the government of the coastal state, 
one would presumably prefer to avoid, if possible, a potentially embarrassing 
dispute over an intrusion into what the coastal state regards as its territory. 
If the purpose of the mission is to warn the government of the coastal state 
while minimizing the risk of direct military engagement, the risk of a military 
or political reaction to an intrusion into the state's claimed waters must be 
considered even if the claim is not recognized by the naval power (and perhaps 
others). 37 

This, then, is a third illustration of the basic point, referred to earlier, 
central to the relationship between the law of the sea and naval and air 
operations at sea. 

Naval and Air Operations at Sea, 
International Law and Domestic Politics 

The influence of the international law of the sea on domestic politics has 



32 Law of Naval Operations 

two important implications for naval and air operations at sea. Both relate 
to the restraints on and costs of deploying naval or air forces in furtherance 
of political, military or economic objectives. 

A deployment may be opposed for legal reasons by either supporters or 
opponents of a mission. Legal objections may preclude a decision to deploy, 
may increase the domestic political costs of the deployment, or may erode 
domestic support for the mission and more generally for the maintenance of 
military and naval options. The greater the doubts about the international 
legality of a naval operation, the greater the difficulty one may encounter 
in assembling and maintaining the necessary domestic support. A foreign 
ministry will not necessarily accept a navy's view of what the law permits; 
a legislature will not necessarily accept a foreign ministry's view; and an 
informed public will not necessarily accept the legislature's view. In brief, 
the international pedigree of the platform of principle on which a naval 
mission is based must be almost, if not quite, as great for domestic reasons 
as for international ones. 

The maritime interests of a large naval power are by no means limited 
to the preservation of its options to deploy its navy at will to different parts 
of the world. Like those of most coastal states, its people would probably 
want uninvited foreign navies to stay far away, control of as much of the 
ocean's natural resources off the coast as possible, stronger measures to 
intercept illegal immigrants and smugglers, and would probably fear an 
environmental catastrophe not only from tankers and oil rigs off the coast 
but perhaps from nuclear armed or powered warships or aircraft. If the 
paradigm coastal state might prefer a thousand-mile territorial sea for itself 
without regard to the global consequences, the paradigm maritime power, 
since it is also a coastal state, would probably prefer a thousand-mile 
territorial sea for itself and a three-mile territorial sea for everyone else. 

Limiting the authority of coastal states over the use of the sea off their 
coasts is important to global navies and, more broadly, global deployment 
of armed forces; to international trade and communications; and to those 
fishermen who seek their livelihood off foreign coasts rather than their own. 
Most remaining ocean interests either favor increased control of the sea by 
coastal nations, or are unconcerned with the issue. Accordingly, the legislators 
of even great naval powers are under constant pressure to expand the coastal 
state's control over the oceans in one area or another or for one purpose or 
another. 

This pressure presents a global navy with two problems. First, it cannot 
plausibly assert rights off foreign coasts that its own government denies 
foreign ships or aircraft off its own coast. Second, and more seriously, 
increasing unilateral assertions of coastal state jurisdiction by the great naval 
powers tends to legitimate the notion that each coastal state may unilaterally 
assert control over activities off its coast to the extent such an assertion serves 



Oxman 33 

its interests. The fact that a global naval power may perceive an interest in 
coastal state control of fishing vessels but not warships does not, from this 
perspective, preclude some other state from calculating its interests in a 
different way and making different kinds of unilateral claims. The whims 
of a quixotic national legislature are unlikely to provide a firm foundation 
for a platform of principle from which to seek global acquiescence in the 
definition and exercise of legal rights. 

The problem is even more severe if the global navy is attempting to 
harmonize perceptions of legality around a particular articulation of the law, 
in this case the U.N. Convention on the Law of the Sea. The key to this effort 
is the legitimacy not merely (and in some cases not principally) of the 
particular rule set forth in the Convention, but rather the legitimacy that 
flows from the notion that the Convention itself is the reflection of the positive 
will of the community of states. Quite apart from the controversy over deep 
seabed mining, if the legislature of the naval power exercises the option to 
ignore certain proscriptions of the Convention, why should other states not 
ignore other proscriptions? 

Given the strong competing pressures on their own government and 
legislature, the promoters of a law of the sea conducive to foreign 
acquiescence in global naval operations are constantly attempting to prevent 
domestic laws or actions, often in response to problems of the moment, that 
would undermine the navy's long-term global legal position and strategy. 
Their ability to persuade their own government to respect certain rules and 
restraints depends in part on what domestic decision-makers and their advisers 
believe international law requires. 

Whether or not one may properly characterize as wishful thinking the view 
that customary international law based on the 1982 U.N. Convention on the 
Law of the Sea will restrain the behavior of foreign governments as much 
as a ratified Convention would, there is no basis whatever for believing that 
the United States Congress, in the face of political pressures to the contrary, 
is as likely to respect the restraints imposed by an unratified treaty as it is 
a ratified one. Indeed, as a matter of the pure theory of customary 
international law, it is likely that international custom and practice would 
rather quickly conform to virtually any coastal state claim likely to be made 
by the United States, precisely because the state with perhaps the greatest 
interest in opposing and capacity to oppose the emergence of such custom 
and practice is the one making the claim in the first place. 

No international legal strategy can alone solve the domestic problem. Those 
responsible for promoting a legal climate conducive to protecting the option 
of present and future governments to deploy naval forces to any part of the 
sea must however recognize that a strategy for ensuring domestic restraint 
is at least as important as a strategy for ensuring foreign restraint. Indeed, 
an excessive claim by one foreign state may well have no operational 



34 Law of Naval Operations 

significance and limited legal impact. On the other hand, every domestic claim 
by a major naval power automatically limits the options of its navy in every 
part of the world, and frequently tempts significant numbers of foreign 
governments to make even more ambitious claims. 

Conclusion 

The willingness of foreign governments to acquiesce in naval operations 
has an important bearing on the range, cost and utility of options to maintain 
and deploy a navy off foreign shores. The perceptions of foreign governments 
regarding the rights and obligations of states with respect to naval operations 
may in turn have an important bearing on their willingness to acquiesce in 
such operations. Any long-term naval strategy should therefore contain 
within it a strategy for influencing the perceptions of foreign governments 
regarding the content of the international law of the sea and enhancing their 
willingness to respect its proscriptions voluntarily. That strategy should also 
include a system for ensuring scrupulous domestic restraint along similar lines. 

Any successful strategy for achieving these legal goals will entail some 
political, economic, and even military costs. Those costs must be measured 
against the importance of maintaining the option to deploy a navy off foreign 
shores and the likelihood and costs of obtaining by other means the desired 
degree of foreign acquiescence over time and in all the places it may be needed. 
Moreover, the alternative costs of different strategies for achieving these legal 
goals must be assessed carefully. 

The Handbook is a useful part of this process. At the least it encourages 
behavior from United States forces consistent with the international legal 
positions and objectives of the United States. It is a reasonably accurate guide 
to the perceptions of foreign governments primarily because it is based on 
the U.N. Convention on the Law of the Sea. Accordingly, it is likely to remain 
an accurate guide only so long as the United States and foreign governments 
resist the temptation to act in ways at variance with the provisions of the 
Convention limiting coastal state powers in principle, and in particular over 
navigation, overflight and related naval operations. 

It is not likely that many coastal states (or legal commentators) will 
conclude that customary international law limits the freedom of action of 
coastal states more than the Convention. Any significant change in the law 
of the sea is therefore likely to be either neutral or prejudicial from the 
perspective of naval operations, not favorable. The Handbook is therefore 
correct in seeking to anchor the future evolution of the sea in the principles 
of the Convention. It is also correct in emphasizing the importance of a 
program of routine exercise of rights and freedoms not only to avoid 
perceptions of acquiescence in coastal state claims but to enhance the 



Oxman 35 

perception that naval operations are normal and lawful. While the point is 
not made, such a program is important whether or not there is a ratified 
Convention. The meaning and effect of treaties may also evolve in response 
to practice. 

The question remains whether the objectives of a legal strategy would be 
enhanced by a globally ratified Convention on the Law of the Sea. In 
considering this matter, two additional questions are particularly important. 
First, are governments more likely to respect the restraints on their freedom 
of action set forth in a ratified Convention on the Law of the Sea? Second, 
are missions for the purpose of exercising rights and freedoms protected by 
the Convention, in the face of inconsistent claims or otherwise, more likely 
to be supported by the Executive Branch and Congress if they are rooted 
in ensuring respect for a ratified Convention? 

If these questions are answered in the affirmative, then are the benefits 
of a widely ratified Convention worth the costs that may be entailed in 
obtaining it? Stripped of the legal and political rhetoric hurled at this issue, 
it comes down to a simple question of priorities. 

Notes 

* Professor of Law, University of Miami School of Law. 

1. It is also a suitable occasion for examining the same question with reference to armed conflict. 
This writer (fortunately) was not invited to address that subject. 

2. The Commander's Handbook on the Law of Naval Operations NWP-9, p. 27 (hereinafter Handbook). 

3. United Nations Convention on the Law of the Sea, Dec. 10, 1982, U.N. Pub. Sales No. E.83.V.5 
(1983), reprinted in International Legal Materials, Nov. 1982, v. 21, p. 1261 (hereinafter cited as Law of the 
Sea Convention). 

4. Handbook, supra note 2, par. 1.1. 

5. As the United States Navy would be expected to understand it. 

6. Handbook, supra note 2, pars. 1.4, 1.5, 1.8. 

7. The authors of the Handbook are to be congratulated on an elegant attempt at a solution to the question 
of the relationship between the exclusive economic zone and the regime of the high seas. This writer 
believes that the question cannot be resolved by assigning a geographic status to the exclusive economic 
zone identical to that assigned to the high seas beyond: "The question whether relevant aspects of the 
economic zone regime are part of the high seas regime has been resolved by making relevant aspects 
of the high seas regime part of the economic zone regime and by deleting the geographic definition of 
the high seas." Bernard H. Oxman, "The Third United Nations Conference on the Law of the Sea: the 
1977 New York Session," American Journal of International Law, January 1978, v. 72, p. 57 (more generally 
at pp. 67-75). 

It should be noted nevertheless that insofar as the authors of the Handbook are concerned with the kinds 
of operations warships and military aircraft ordinarily conduct in peacetime, rather than with other 
activities, they point to a conclusion not markedly different from that previously stated by this writer: 

To put the matter differently, warships in principle enjoy freedom to carry out their military 
missions under the regime of the high seas subject to three basic obligations: (1) the duty to refrain 
from the unlawful threat or use of force; (2) the duty to have "due regard" to the rights of others 
to use the sea; and (3) the duty to observe applicable obligations under other treaties or rules of 
international law. The same requirements apply in the exclusive economic zone, with the addition 
of an obligation to have "due regard to the rights and duties of the coastal State" in the exclusive 
economic zone. 

Bernard H. Oxman, "The Regime of Warships Under the United Nations Convention on the Law of 
the Sea," Virginia Journal of International Law, Summer 1984, v. 24, p. 809, at pp. 837-38 (English adaptation 



36 Law of Naval Operations 

of an article originally published in Annuaire Francais de Droit International, v. 28, p. 811 (1982)) (hereinafter 
the Regime of Warships). 

8. Handbook, supra note 2, par. 2.3.2.5. 

9. Id. 

10. Law of the Sea Convention, supra note 3, art. 18, par. 2. 

11. Id., art. 2, par. 3. 

12. Id., art. 300. 

13. In considering the importance of this question, one might bear in mind, for example, that the baselines 
established by Oman extend well into the Strait of Hormuz, and that the question of navigation and 
overflight rights in the Arctic Ocean north of Canada and the Soviet Union is not necessarily resolved 
even if one were to regard as valid the internal waters claims overlapping part or all of the Northwest 
Passage or Northeast Passage. 

14. Handbook, supra note 2, par. 2.3.1. 

15. Id., par. 2.3.3.1. 

16. See Oxman, The Regime of Warships, supra note 7. Some of the matters treated in that article 
are not addressed at length in the Handbook. These include the implications of the prohibition on the threat 
or use of force for peacetime activities (p. 814), the duty to protect and preserve the marine environment 
(p. 819), disclosure of sensitive information (p. 822), reservation of the high seas for "peaceful purposes" 
(p. 829), the international seabed area (p. 832), as well as military maneuvers (p. 838), installations and 
structures (p. 841), scientific research (p. 844), intelligence collection (p. 846), and residual rights in the 
exclusive economic zone (p. 847). 

17. Handbook, supra note 2, p. 28. 

18. Id. 

19. Id. 

20. Id. It is possible to infer, at least with regard to the international law of the sea, that the word 
"continual" conveys precisely the intended meaning. 

21. Id., par. 2.6. The reference is to the following excerpt as quoted from the President's Statement 
on United States Oceans Policy of March 10, 1983: 

The United States will exercise and assert its navigation and overflight rights and freedoms 
on a worldwide basis in a manner that is consistent with the balance of interests reflected in the 
[1982 LOS] convention. The United States will not, however, acquiesce in unilateral acts of other 
states designed to restrict the rights and freedoms of the international community in navigation 
and overflight and other related high seas uses. 

President's Statement on United States Oceans Policy, Weekly Compilation of Presidential Documents, v. 19, 
No. 10, p. 383 (March 14, 1983), reprinted in International Legal Materials, v. 22, p. 464 (1983) (hereinafter 
cited as Presidential Statement). 

22. Those contemplating the distinction between agreement with an objective and support for the 
freedom to pursue that objective may recall the famous quotation attributed to Voltaire, "I disapprove 
of what you say, but I will defend to the death your right to say it." John Bartlett, Familiar Quotations 
(Boston: Little Brown & Co., 1980), 15th ed., p. 344. 

23. The importance in this type of consideration is a universal feature of law. For example: A and B 
are neighbors in a suburb. A paints the exterior of his house yellow. B does not like yellow. B may acquiesce 
because B believes A has a right to choose the color of his house, or because B believes A should have 
that right. B may hold to that view for a variety of reasons, including B's interest in preserving his own 
right to choose the color of his own house. Note, however, that these considerations operate only in a 
limited range of tolerances. Should A paint his house black, he is not only less likely to obtain the 
acquiescence of his neighbors, but he may bring about an end to the principle that each home owner 
in the community has an independent right to choose the color of his home. 

24. Handbook, supra note 2, par. 4.3.1. 

25. The Handbook specifically refers to the right to conduct naval maneuvers in this context. Id. 

26. Another class that may be implicated comprises the state or states from whose ports the warships 
normally operate or may need to obtain support. That class is excluded from this analysis because a port 
visit requires the consent of the port state and a home-porting or logistical support arrangement may 
well entail "political entanglement" with the port state. 

27. It is rare that the law prohibits actions that have not occurred and are deemed unlikely to occur. 
With this in mind, one may approach with dark amusement a reading of the activities prohibited by the 
U.S.-U.S.S.R. Agreement on the Prevention of Incidents on or over the High Seas, May 25, 1972, 23 
U.S.T. 1168, T.I.A.S. No. 7379, 852 U.N.T.S. 151, and the Protocol thereto, May 22, 1973, 24 U.S.T. 
1063, T.I.A.S. No. 7624. The agreement is described in Handbook, supra note 2, para. 2.8. 



Oxman 37 

28. A remarkable example of how the interests of major naval powers, even those who may regard 
themselves as adversaries, may converge is found in the Joint Statement of United States Secretary of 
State Baker and Soviet Foreign Secretary Shevardnadze at Jackson Hole, Wyoming, on September 23, 
1989. In their statement the Secretaries state: 

The Governments are guided by the provisions of the 1982 United Nations Convention on the 
Law of the Sea, which, with respect to traditional uses of the oceans, generally constitute 
international law and practice and balance fairly the interest of all States. They recognize the 
need to encourage all States to harmonize their internal laws, regulations and practices with those 
provisions. 

They attach to their Joint Statement a "Uniform Interpretation of the Rules of International Law 
Governing Innocent Passage," which, inter alia, states that "[t]he relevant rules of international law 
governing innocent passage of ships in the territorial sea are stated in the 1982 United Nations Convention 
on the Law of the Sea. ..." The Uniform Interpretation states explicitly that warships enjoy the right 
of innocent passage without the requirement of prior notification nor authorization. "Joint Statement 
by the United States of America and the Union of Soviet Socialist Republics," September 23, 1989, reprinted 
in International Legal Materials, Nov. 1989, v. 28, p. 1444-47. 

29. One assumes, for example, that United States military aircraft en route from bases in Great Britain 
to a mission over Libya in 1986 would not have chosen to enter the Mediterranean Sea via the Strait 
of Gibraltar had consent to overfly France or Spain been sought and granted (or inferred from existing 
military agreements). "The F-lll's flew a route of about 2,800 nautical miles, and over the Strait of 
Gibraltar, to avoid flying through the airspace of any other nation, [U.S. Secretary of Defense] Weinberger 
said. In response to questions, he said that permission to fly over France had been sought and had been 
denied." "Pentagon Details 2-Pronged Attack," The New York Times, Apr. 15, 1986, p. Al, col. 5. 

Because the sovereignty of a state extends to the airspace over its territorial sea, because a state may 
extend its territorial sea up to 12 nautical miles from the coast, because the Strait of Gibraltar at its 
narrowest point is substantially narrower than 24 nautical miles, and because the Strait is completely 
overlapped by the territorial sea claims of the coastal states in that narrow area, it is in fact not possible 
"to avoid flying through the airspace of any other nation" in order to reach the airspace over the 
Mediterranean Sea. At least from the perspective of encouraging foreign acquiescence, the right of a 
military aircraft to transit the Strait of Gibraltar, without the need to seek and obtain the consent of 
the state whose territorial sea is overflown, rests on the proposition that the right of transit passage of 
straits elaborated in the Law of the Sea Convention is in this respect declaratory of customary international 
law binding on that state. 

30. Since we are discussing navigation off a foreign coast without the need to obtain consent, we exclude 
navigation off a state whose port a ship plans to enter or has entered, because port entry itself requires 
consent. 

31. Considerations such as these presumably played a role in the refusal of the Malaysian government 
to base its rights to use the waters of the Indonesian archipelago on a bilateral agreement rather than 
on a global multilateral treaty on the international law of the sea. 

32. Handbook, supra note 2, p. 28. 

33. Id. 

34. Law of the Sea Convention, supra note 3. 

35. President's Statement, supra note 21. 

36. See note 21 supra and accompanying text. 

37. "The sudden appearance of a warship for the first time in years in a disputed area at a time of 
high tension is unlikely to be regarded as a largely inoffensive exercise related solely to the preservation 
of an underlying legal position." Report of the Special Working Committee on Maritime Claims of the 
American Society of International Law, Newsletter of The American Society of International Law, March-May 
1988, p. 1, 6. 



38 Law of Naval Operations 



Chapter III 
Peacetime Use of Force on the High Seas 



by 
Louis B. Sohn" 



I: Scope of Comment 

The subject discussed in this comment — peacetime use of force on the 
high seas against foreign vessels — is approached rather gingerly in 
Chapter 3 of The Commander's Handbook on the Law of Naval Operations. The 
main thrust of the chapter is to protect United States persons and property 
at sea by U.S. naval forces in peacetime against actions by pirates, terrorists 
or insurgents, and against the hazards of the sea, such as storms or mechanical 
failure. But the chapter deals also with such topics as transport of slaves, 
international narcotics traffic and unauthorized broadcasting from 
international waters; it also deals with the right of U.S. warships to approach 
and visit vessels sailing on the high seas under a foreign flag if suspected of 
such activities or in other special circumstances. 

In the case of the transport of slaves, no direct guidance is given; if 
confronted with such situation, "commanders should request guidance from 
higher authority/' Similar advice is given in the case of unauthorized 
broadcasting. In both cases also it is noted (in paragraph 3.8) that the vessel 
may be approached, stopped and boarded, and the ship's documents examined, 
in order to verify its nationality. There the advice stops, and nothing is said 
about possible search and seizure. While the last sentence of paragraph 3.8 
suggests that the procedure for exercising the right of approach and visit is 
similar to that used in exercising the belligerent right of visit and search, 
it is not clear whether this statement applies only to "stateless vessels" with 
which it is linked in a separate subparagraph, or also to other suspected vessels. 
It is quite obvious, on the other hand, that the belligerent and peacetime 
situations are quite different, and throughout history the United States has 
strongly opposed this analogy (as will be documented later in this comment). 

The issue of suppression of international narcotics traffic is even more 
puzzling, as that traffic is not mentioned at all in paragraph 3.8, which lists 
the only situations in which approach and boarding of foreign vessels were 
allowed. Reliance is placed instead on "bilateral arrangements" (paragraph 
3.6), or "Congressional direction" and "consent" of the foreign flag nation, 



Sohn 39 

granted by a bilateral agreement or ad hoc for the particular occasion 
(paragraph 3.12.4). There seems to be admission here that there is no general 
rule of international law authorizing such action, especially if the action 
envisaged here should extend beyond approach and visit, including even 
arrest, search and seizure. 

It might be useful to the commander on the spot, as well as the "higher 
authority" which is supposed to provide him with guidance, to explain the 
history of the two main efforts to authorize warships to visit, search, and, 
if justified, seize the vessels of other nations, and the reasons for the opposition 
of some major powers, including for a long time the United States and even 
today France, to this "strengthening' ' of the law and of the means to enforce 
it. This comment will thus discuss primarily the efforts to strengthen the 
control over transport of slaves and international narcotics traffic, with only 
incidental references to piracy (where international law developed detailed 
rules, which are generally accepted) and to the limited and by now mostly 
obsolete arrangements for stopping the smuggling of alcoholic beverages into 
the United States. 

Since its early days, the principle of the freedom of the high seas has been 
subjected to a two-pronged attack: the efforts of some coastal states to extend 
their jurisdiction far into the sea, and the assertion by some naval powers 
of the right to exercise jurisdiction over the vessels of other states navigating 
on the high seas. While the first attack has led to a dramatic diminution of 
the area of the high seas, the second attack has led to such strong resistance 
that it resulted in only minor inroads on the freedom of navigation of the 
high seas. Nevertheless, in the last years of the twentieth century, after 
stopping repeated attempts to subject foreign vessels on the high seas to search 
and seizure in the name of abolishing the universally condemned slave trade 
(which unfortunately still exists under different guises), a new danger to the 
freedom of navigation on the high seas has arisen from unilateral attempts 
to enforce national legislation on the high seas in an area almost as odious- 
traffic in narcotic drugs. In view of this development, it seems useful to 
explore the reasons for the persistence of the original opposition to such 
encroachments on the freedom of the seas, to consider the applicability of 
these arguments to the current situation, and to suggest some means to 
overcome the difficulties. 1 As this subject is still too vast, this comment is 
necessarily limited to a discussion of only some of the rules of international 
law which relate to the activities of naval vessels on the high seas in time 
of peace, authorizing some and prohibiting others. 2 

II. Crusade Against Slave Trade 

The essence of the great principle of the freedom of the seas is that all 
nations have an equal right to the uninterrupted use of the high seas for their 



40 Law of Naval Operations 

navigation. From this principle flow two additional principles: that a ship 
on the high seas is subject only to the jurisdiction of the state whose flag 
it flies and that no state has the right to interfere in any manner with vessels 
of other states navigating upon the high seas in time of peace. Even in time 
of war the right to visit, search or seize a neutral vessel has important limits, 
and the state exceeding these limits must pay compensation to the neutral 
state for any loss or damage caused to the vessel, its owner, crew, or cargo; 
even more, freedom of navigation must be observed in time of peace, and 
the violator must pay compensation proportional not only to the damage and 
loss, but also to the gravity of the violation. 3 

These rules have been recognized for at least two hundred years. For 
instance, in the often quoted statement in the 1817 Le Louis case, the eminent 
British Admiralty judge, Sir William Scott (later Lord Stowell), explained 
these principles in the following manner: 

Upon the first question, whether the right of search exists in time of peace, I have to 
observe that two principles of public law are generally recognized as fundamental. One 
is the perfect equality and entire independence of all distinct states. Relative magnitude 
creates no distinction of right; . . . and any advantage seized upon that ground is mere 
usurpation. This is the great foundation of public law, which . . . mainly concerns the 
peace of mankind, both in their public and private capacities, to [be] preserve[d] 
inviolate. The second is, the uninterrupted use of the unappropriated parts of the ocean 
for their navigation. In places where no local authority exists, where the subjects of 
all states meet upon a footing of entire equality and independence, no one state, or any 
of its subjects, has a right to assume or exercise authority over the subjects of another. 
I can find no authority that gives the right of interruption to the navigation of states 
in amity upon the high seas, excepting that which the rights of war give to both 
belligerents against neutrals. This right, incommodious as its exercise may occasionally 
be to those who are subjected to it, has been fully established in the legal practice of 
nations, having for its foundation the necessities of self-defence, in preventing the enemy 
from being supplied with the instruments of war, and from having his means of 
annoyance augmented by the advantages of maritime commerce. Against the property 
of his enemy each belligerent has the extreme rights of war. Against that of neutrals, 
the friends of both, each has the right of visitation and search, and of pursuing an inquiry 
whether they are employed in the service of his enemy, the right being subject, in almost 
all cases of an inquiry wrongfully pursued, to a compensation in costs and damages. 4 

A 1950 memorandum prepared by the Secretariat of the United Nations 
for the International Law Commission, after examining the pretensions of 
various nations to claim dominion over vast areas of the sea, concluded that 
the concept of the freedom of the seas which was developed to counteract 
these claims means not only that every nation has an equal right to use the 
high seas, but also that ships flying the flag of one state are prohibited from 
interfering with ships flying the flags of other nationalities. The memorandum 
pointed out that: 

Such interference, which is naturally forbidden in the mutual relations of users, is not 
even tolerated in the case of warships, which might be considered to have as their general 
mission to watch over the maintenance of order and security at sea. In peace-time 
warships have no police powers except over private vessels flying their own flag. The 



Sohn 41 

general policy powers of warships on the high seas in respect of private foreign vessels 
are limited to the right of approach, and do not comprise the right to check nationality 
by examination of ships' papers. The only exception to this rule is in the case of grave 
suspicion, and the State to which the investigating warship belongs is responsible for 
any damage caused by an examination that proves to be unwarranted. A warship which 
considers it necessary to interfere in this way with the navigation of a ship flying a 
flag other than its own, assumes, and thereby involves the State to which it belongs 
in, full responsibility for the action taken and for any possible damages. 5 

In his opening statement to the 1958 Conference on the Sea, Admiral 
Oswald S. Colclaugh called attention to the fact that the United States "had 
often had to defend itself against the infringements of the principle [of the 
freedom of the seas]," and that, therefore, it "attached great importance to 
it."' 

A dispute arose as early as the 1790s between the United States and Great 
Britain with respect to the British practice of stopping foreign vessels, 
including the American ones on the high seas, and removing sailors considered 
by the British to be still British subjects although they were naturalized 
abroad. This British abuse of the right of visit and search was one of the reasons 
for the War of 1812, and although this practice was in fact abandoned soon 
thereafter, the United States continued to raise the issue for some thirty years. 7 
The American objections were spelled out in 1823 by John Quincy Adams, 
then Secretary of State: 

[T]he United States have never disputed the belligerent right of search, as recognized 
and universally practiced conformably to the laws of nations. They have disputed the 
right of belligerents, under colour of the right of search for contraband of war, to seize 
and carry away men, at the discretion of the boarding officer, without trial and without 
appeal; men, not as contraband of war or belonging to the enemy, but as subjects, real 
or pretended, of the belligerent himself, and to be used by him against his enemy. It 
is the fraudulent abuse of the right of search for purposes never recognized or admitted 
by the laws of nations; purposes in their practical operation of the deepest oppression 
and most crying injustice, that the United States have resisted and will resist, and which 
warns them against assenting to the extension in time of peace, of a right which 
experience has shown to be liable to such gross perversion in time of war. 8 

The matter was only settled by an exchange of notes made in connection 
with the Webster- Ashburton Treaty in 1842. 9 

When in 1807 the British Parliament prohibited slave trade by British 
citizens, 10 the British Government embarked on a crusade to stop this trade 
also by citizens of other countries. Remembering the difficulties about the 
impressment of seamen, the United States — though in 1807 it also prohibited 
importation of slaves into the United States 11 — refused to concede to the 
British Navy the right to visit and search vessels under the United States flag. 
While British courts approved searches and seizures of American vessels 
during the Napoleonic wars, 12 Sir William Scott had to consider the seizure 
in peacetime of Le Louis — mentioned above — which involved a French vessel, 
condemned by the British admiralty court at Sierra Leone on the grounds 
that it was equipped for carrying slaves, that it resisted the capture, and that 



42 Law of Naval Operations 

in the process it "piratically killed'' eight members of the crew of the British 
cruiser. Sir William held that slave trade was not piracy nor a generally 
accepted crime under the law of nations, and that its illegality under the laws 
of both England and France was not a sufficient ground for the vessel's seizure. 
He started with the premise that neither a British act of parliament, nor any 
commission founded on it, can effect any right or interest of foreigners unless 
they are founded upon principles and impose regulations that are consistent 
with the law of nations. While a state has the "right to see that its own vessels 
are duly navigated," it has no right "to visit and search all the apparent vessels 
of other countries on the high seas, in order to institute an inquiry whether 
they are not in truth British vessels violating British laws." He added that 
a state should not make regulations which it "cannot enforce without 
trespassing on the rights of others." He emphasized that 

[t]o press forward to a great principle by breaking through every other great principle 
that stands in the way of its establishment; to force the way to the liberation of Africa 
by trampling on the independence of other states in Europe; in short, to procure an 
eminent good by means that are unlawful, is as little consonant to private morality as 
to public justice. 

If a country should agree by convention to allow visit and search in time 
of peace, it would be "for the prudence of states to regulate by that convention 
the exercise of the right with all the softenings of which it is capable," and 
to make sure that it would be "so constructed as not to excite just irritation." 
He pointed out, finally, that France rejected a proposed treaty permitting 
search on a reciprocal basis, "upon the express ground that she would not 
tolerate any maritime police to be exercised on her subjects but by herself." 13 
After the British Government concluded treaties with Spain, Portugal and 
the Netherlands allowing, on a reciprocal basis, search and seizure of vessels 
and adjudication by a mixed commission, the United States rejected a similar 
treaty. John Quincy Adams, then Secretary of State, claimed that in 
accordance with this plan, citizens of the United States would be liable 

in time of peace to have their vessels searched and with their persons seized and carried 
away by the naval officer of a foreign power, subjected to the decision of a tribunal 
in a foreign land, without benefit of the intervention of a jury of accusation or of a 
jury of trial, by a court of judges and umpires half of whom would be foreigners and 
all irresponsible to the supreme authorities of the United States. 14 

On another occasion, Mr. Adams made clear, however, that 

although Great Britain . . . may be willing to abandon those of her subjects who defy 
the laws and tarnish the character of their country by participating in this trade to the 
dispensation of justice even by foreign hands, the United States are bound to remember 
that the power which enables a court to try the guilty authorizes them also to pronounce 
upon the fate of the innocent and the very question of guilt or innocence is that which 
the protecting care of their Constitution has reserved for citizens of this Union to the 
exclusive decision of their own countrymen. This principle has not been departed from 
by the statute which has branded the slave trader with the name, and doomed him to 
the punishment, of a pirate. The distinction between piracy by the law of nations and 



Sohn 43 

piracy by statute is well known and understood in Great Britain; and while the former 
subjects the transgressor guilty of it to the jurisdiction of any and every country into 
which he may be brought or wherein he may be taken, the latter forms a part of the 
municipal criminal code of the country where it is enacted and can be tried only by 
its own courts. 

At that time, Mr. Adams explained also, with real passion, that the United 
States had even more basic objections to the whole idea of search and seizure. 
He noted that: 

[T]he nature of the right of search at sea . . ., as recognized or tolerated by the usage 
of nations, is a right exclusively of war, never exercised but by an outrage upon the 
rights of peace. It is an act analogous to that of searching the dwelling-houses of 
individuals on the land. The vessel of the navigator is his dwelling-house, and like that, 
in the sentiment of every people that cherishes the blessings of personal liberty and 
security, ought to be a sanctuary inviolable to the hand of power, unless upon the most 
unequivocal public necessity, and under the most rigorous personal responsibility of the 
intruder. Search at sea, as recognized by all maritime nations, is confined to the single 
object of finding and taking contraband of war. By the law of nature, when two nations 
conflict together in war, a third, remaining neutral, retains all its rights of peace and 
friendly intercourse with both. Each belligerent, indeed, acquires by war the right of 
preventing a third party from administering to his enemy the direct and immediate 
materials of war; and, as incidental to this right, that of searching the merchant vessels 
of the neutral on the high seas to find them. Even thus limited, it is an act of power 
which nothing but necessity can justify, inasmuch as it cannot be exercised but by 
carrying the evils of war into the abodes of peace, and by visiting the innocent with 
some of the penalties of guilt. Among the modern maritime nations, an usage has crept 
in, not founded upon the law of nature, never universally admitted, often successfully 
resisted, and against which all have occasionally borne testimony by renouncing it in 
treaties, of extending this practice of search and seizure to all the property of the enemy 
in the vessel of the friend. This practice was, in its origin, evidently an abusive and 
wrongful extension of the search for contraband: effected by the belligerent, because 
he was armed; submitted to by the neutral, because he was defenseless; and acquiesced 
in by his sovereign for the sake of preserving a remnant of peace, rather than become 
himself a party to the war. Having thus, occasionally, been practiced by all as 
belligerents, and submitted to by all as neutrals, it has acquired the force of an usage 
which, at the occurrence of every war, the belligerent may enforce or relinquish, and 
which the neutral may suffer or resist, at their respective options. 

This search for and seizure of the property of an enemy in the vessel of a friend is 
a relic of the barbarous warfare of barbarous ages — the cruel and, for the most part, 
now exploded system of private war. As it concerns the enemy himself, it is inconsistent 
with that mitigated usage of modern wars which respects the private property of 
individuals on the land. As relates to the neutral, it is a violation of his natural right 
to pursue, unmolested, his peaceful commercial intercourse with his friend. Invidious 
as is its character in both these aspects it has other essential characteristics equally 
obnoxious. It is an uncontrolled exercise of authority by a man in arms over a man 
without defense — by an officer of one nation over the citizen of another — by a man 
intent upon the annoyance of his enemy, responsible for the act of search to no tribunal, 
and always prompted to balance the disappointment of a fruitless search by the abusive 
exercise of his power, and to punish the neutral for the very clearness of his neutrality. 
It has, in short, all the features of unbridled power, stimulated by hostile and unsocial 
passions. 



44 Law of Naval Operations 

I forbear to enlarge upon the further extension of this practice by referring to injuries 
which the United States experienced when neutral in a case of vital importance; because, 
in digesting a plan for the attainment of an object which both nations have equally at 
heart, it is desirable to avoid every topic which may excite painful sensations on either 
side. I have adverted to the interest in question from necessity, it being one which could 
not be lost sight of in the present discussion. 

Such being the view taken on the right of search, as recognized by the law of nations 
and exercised by belligerent powers, it is due to candor to state that my Government 
has an insuperable objection to its extension by treaty, in any manner whatever, lest 
it might lead to consequences still more injurious to the United States, and especially 
in the circumstance alluded to. That the proposed extension will operate in time of 
peace and derive its sanction from compact present no inducements to its adoption. On 
the contrary, they form strong objections to it. Every extension of the right of search 
on the principles of that right is disapproved. If the freedom of the sea is abridged by 
compact for any new purpose the example may lead to other changes. And if its operation 
is extended to a time of peace, as well as of war, a new system will be commenced 
for the dominion of the sea, which may eventually, especially by the abuses into which 
it may lead, confound all distinction of time and circumstances, of peace and of war, 
and of rights applicable to each state. 15 

In 1824, a British-American treaty was drafted based on a proposal made 
by then Secretary of State John Quincy Adams, who took into account the 
fact that both countries had enacted laws declaring the slave trade to be piracy 
punishable by death, 16 as well as a resolution of the United States Congress 
requesting the President to conduct negotiations leading to the ultimate 
denunciation of the slave trade "as piracy under the law of nations, by the 
consent of the civilized world." 17 

The 1824 Treaty declared that the right to visit and search, reciprocally 
conceded, is wholly and exclusively founded on the consideration that the 
two nations have by their laws made the slave trade piracy, and that each 
power shall use its influence with all other civilized powers, to procure from 
them the acknowledgement that the slave trade is piracy under the law of 
nations. To remove United States objections to foreign adjudication the treaty 
also provided that a slave trading vessel of one country captured by the naval 
vessel of the other should be delivered to a port of the captured vessel's own 
country for adjudication. 18 The Senate circumscribed its consent to 
ratification with several amendments cutting down United States obligations; 
these amendments were rejected by the British Government, and the treaty 
had to be abandoned. 19 

After this attempt to find a compromise came to naught, the situation 
deteriorated. In 1839, the British Parliament enacted a law which was 
primarily directed against Portuguese vessels, but also applied to vessels "not 
being justly entitled to claim the protection of the flag of any state or 
nation.'' 20 It authorized their visit to ascertain their nationality; seizing them 
not only when slaves were found on board but also if they were equipped 
for slave trade (e.g., carrying shackles, handcuffs, extra food and water, and 
large boilers for mass cooking); bringing them for adjudication as if they were 



Sohn 45 

the property of British subjects; granting a bonus ("indemnity") to all persons 
concerned in their capture; and protecting the captors from any suit against 
them in a British court. 21 

When this bill was presented to the House of Lords, the Duke of 
Wellington, the great British hero who defeated Napoleon in the Battle of 
Waterloo, opposed the bill regardless of its laudable objective. He reminded 
the lords that "the greatest judge who ever presided over an Admiralty 
Court" (Lord Stowell) had laid down in the he Louis case that in peacetime 
even the right of search was illegal and contrary to the law of nations, unless 
that right had been conceded by treaty. If British cruisers should start stopping 
and searching suspicious ships of other nations, whether a treaty existed or 
not, as they had already started doing in relation to some foreign flag ships, 
other nations might soon resist or retaliate, and there would be a grave danger 
of universal war. 22 Wellington's view prevailed, and the House of Lords 
rejected the bill; it was, however, adopted on the second reading, after the 
Government made sufficient changes in the bill to persuade enough lords to 
accept it. 23 

In 1840, the British Government informed the United States that it could 
not allow foreign vessels to protect themselves by a fraudulent use of the 
American flag, and instructed the Admiralty to board American flag vessels 
suspected of being non- American for the restricted purpose of examining their 
papers and ascertaining whether they were actually entitled to display the 
American flag. If these papers were in order, the vessel would have to be 
immediately released; if they were not in order, it would be permissible to 
search the vessel; and if it had slaves on board or was equipped for slave 
trading, it would have to be detained and sent to the appropriate port for 
trial. The Admiralty's orders made it clear that American vessels must be 
shown every possible courtesy when boarded, but no one should be allowed 
to refuse inspection, and force might be used if necessary. 2 * 1 

After the United States protested the boarding of American flag vessels, 
Lord Palmerston, the British Foreign Secretary, explained that "the right 
existed of ascertaining in some way or another the character of the vessel, 
and that by her papers and not the colours on flag, which might be displayed," 
and that such inspection of papers "could not be regarded as amounting to 
a right of search." In reply, the United States ambassador, Mr. Stevenson, 
made clear that "under no circumstances could the government of the United 
States consent to the exercise of the right on the part of any foreign nations, 
to interrupt, board, or search their vessels on the high seas." He added that 
"to admit the right of a foreign naval officer, to decide upon the genuineness 
of American vessels, by boarding them . . . was in effect allowing the right 
of search, and therefore utterly indefensible." 25 

The difference of views on the right of visit was ingeniously papered over 
in the Webster-Ashburton Treaty of 1842, which dealt with a number of 



46 Law of Naval Operations 

important British- American disputes. It provided for sending two squadrons, 
one British and one American, to West Africa to suppress, separately but 
in concert and cooperation, the slave trade. 26 It was understood that the main 
duty of the American squadron would be to ascertain, in case of doubt, the 
right of a vessel to display the American flag, and thus to avoid its visit by 
a British warship. 27 

In order to avoid further conflict, the British Admiralty issued the 
following instructions to the Navy: 

The Slave Trade has been denounced by all the civilized world as repugnant to every 
principle of justice and humanity. You are, however, to bear in mind, that Great Britain 
claims no rights whatever with respect to foreign ships engaged in that traffic, excepting 
such as the Law of Nations warrants, or as she possesses by special Treaties and 
Conventions with particular states. 

It is your duty to make yourself thoroughly conversant with the Treaties, Conventions, 
and Laws, as well as with all the Instructions given to you relative to the Slave Trade. 

You are not to visit a vessel under a Foreign flag on the High Seas on suspicion of 
the Slave Trade, except in virtue of special authority under Treaty, or in case you have 
reason to believe that the vessel has no right to title to claim the protection of the flag 
she bears . . . 

Towards every functionary, British or Foreign, with whom you may come in contact, 
you will invariably maintain a respectful and courteous demeanour. 

You will take special care to ensure propriety of language and demeanour on the 
part of officers, seamen and marines, towards all persons (officers being held responsible 
for any 'exhibition of intemperance' on the part of those under their command). 28 

Nevertheless, other incidents occurred, and in 1852 Secretary of State Cass 
reopened the controversy by notifying the British Government that the 
United States denied "the right of cruisers of any other power whatever, 
for any purpose whatever, to enter their vessels by force in time of 
peace. . . . No change of name can change the illegal character of the 
assumption. Search, or visit, it is equally an assault upon the independence 
of nations." 29 When the British Government asked the law officers of the 
Crown for their opinion on this subject, they responded that the United States 
was right in its interpretation of international law, and that an American 
vessel could be boarded by British officers only at their own risk. 
Consequently, British cruisers were ordered "to respect the American flag 
under any circumstances." 30 

President Lincoln, upon taking office, immediately authorized Secretary 
of State Seward to start negotiations with the British Government on a 
convention to suppress the slave trade. These negotiations terminated in April 
of 1862 by the conclusions of a detailed convention, which authorized the 
ships of the two navies to "visit such merchant vessels of the two nations 
as may, upon reasonable grounds, be suspected of being engaged in the African 



Sohn 47 

Slave Trade, or having been fitted for that purpose; or of having, during the 
voyage on which they are met by the said cruisers, been engaged in the 
American Slave Trade, contrary to the provisions of this Treaty." The means 
of the search were carefully specified in the treaty, and it was made clear 
that "the only object of the search is to ascertain whether the vessel is 
employed in African Slave Trade, or is fitted up for the said Trade." The 
right to search was originally limited to the distance of 200 miles from the 
coast of Africa, southward of the 32nd parallel of north latitude, and within 
30 leagues of the coast of Cuba; later it was extended to the area within 30 
leagues of Madagascar, Puerto Rico and Santo Domingo. 

The two governments agreed to establish three Mixed Courts of Justice, 
formed of an equal number of individuals from both countries; their seats 
were to be at Sierra Leone, Cape of Good Hope and New York. Each captured 
ship was to be brought before one of these courts and, if condemned, was 
to be broken up (to avoid its later sale to another slave trader); the master 
and crew of any condemned vessel were to be punished according to the laws 
of the country to which such vessel belonged, and should ordinarily be 
delivered for the execution of that punishment to the nation under whose 
flag the condemned vessel was sailing; and punishment was also to be meted 
to the owners of the condemned vessel and the persons interested in her 
equipment or cargo unless they should be able to prove that they had no 
participation in the enterprise. The enslaved Africans found on board of a 
condemned vessel were to be placed at the disposal of the Government whose 
cruiser had made the capture; they were to be set free immediately, the 
Government to whom they had been delivered guaranteeing their liberty. 
Should the Mixed Court of Justice decide, however, that the cruiser was guilty 
of an arbitrary and illegal detention, the cruiser's Government would be 
obligated to make good any losses suffered by the subjects or citizens of the 
other country, such indemnification to be paid within one year from the 
Court's decision. If one Government should complain that a navy officer of 
the other country had deviated from the stipulations of the Treaty, his 
government would be bound to institute an inquiry and to inflict upon the 
officer, if found guilty of willful transgression, a punishment proportionate 
to the transgression. 31 

By the end of the 1860s, the slave trade diminished greatly, and Congress 
asked for the abolition of the Mixed Courts of Justice in order to cut 
unnecessary expenditures. 32 These courts were terminated in 1870, and their 
jurisdiction was transferred to national courts competent to deal with 
maritime prizes. Any American vessel captured by a British cruiser was to 
be sent for adjudication to New York or Key West, whichever should be 
more accessible, or was to be handed over to a United States cruiser, if one 
should be available in the neighborhood of the capture; similarly, a British 
vessel captured by an American cruiser was to be sent for adjudication to 



48 Law of Naval Operations 

the nearest or most accessible British colony, or was to be handed over to 
a British cruiser, if one should be available in the neighborhood of capture. 
All enslaved Africans on board either an American or British vessel were 
to be handed over to the nearest British authority, to be immediately set free 
and guaranteed liberty by the British Government. If some of them had to 
be sent with the detained vessel as necessary witnesses, they were to be set 
free as soon as their testimony should no longer be required and their liberty 
was to be guaranteed. 33 This ambitious treaty ended the American-British 
debate about visit and search, but it had little practical effect as the slave 
trade across the Atlantic came to an end at about the same time as a result 
of Brazil's change of attitude and its willingness to take effective action 
against importation of slaves. 34 

The work of the abolitionists was not yet finished. In the meantime, there 
was an increase in slave traffic from East Africa across the Indian Ocean, 
which led in 1888 to the renewal of the debate about the right of visit and 
search between, on the one hand, Great Britain and Germany, who were 
supposedly helping the Sultan of Zanzibar to blockade the coast, and, on the 
other hand, France. In addition, problems arose between Great Britain and 
Germany, which dealt harshly with captured vessels, their crews, and even 
the liberated cargo. 35 

When the Brussels conference on the affairs of Africa was convened by 
King Leopold II of Belgium in 1889, the British Government made sure that 
the issue of terminating maritime slave traffic would be on the agenda, and 
proposed a general agreement to establish a specific slave trade zone within 
which the signatory powers would have the "right of supervision, jointly and 
severally, whether on high seas or in territorial waters, over all sailing vessels 
under any flag." 36 The proposal was to be implemented by bringing the 
captured slavers before mixed tribunals representing at least five of the 
signatory powers; by turning the offenders over to their own national 
authorities for punishment under their own laws, which would provide for 
severe penalties; and by establishing international offices to exchange 
information not only about the slave trade but also about ships authorized 
to fly each national flag and the sentences passed on slavers. 37 

The French Government responded with a proposal which allowed 
inspection within a more limited zone of only indigenous vessels for the sole 
purpose of verifying the flag. It required, in case of doubt about a vessel's 
right to fly a particular flag, that the investigation be handed over to the 
flag nation. It provided for returning the vessel to the captor if it was not 
entitled to fly the flag it claimed, and imposed compensation for wrongful 
arrest, to be settled, in case of a dispute, by an international tribunal. 38 

The Russian jurist, Frederic de Martens, was given the task of preparing 
a compromise solution, and his proposal became chapter III of the General 
Act for the Repression of African Slave Trade, signed at Brussels on July 



Sohn 49 

2, 1890. 39 It provided for more effective repression of the slave trade in the 
maritime zone of the Indian Ocean extending from south of Madagascar to 
Persia (Iran) in the north, and including the Red Sea and the Persian (Arab) 
Gulf. The surveillance was to be limited to native vessels whose tonnage was 
less than 500 tons. A warship of any signatory power, having reason to believe 
that a vessel of such tonnage, navigating within the specified zone, was 
engaged in the slave trade or was guilty of the fraudulent use of a flag, was 
entitled only to examine the ship's papers; any further search or calling the 
roll of the crew and passengers was only authorized when permitted by a 
prior convention for suppression of the slave trade concluded by the flag state 
of the vessel. Should the acts of supervision permitted by the treaty or 
convention convince the naval officer in command of the cruiser that 
irrefutable proofs existed of fraudulent use of the flag or participation in the 
slave trade, he had to bring the arrested vessel to the nearest port of the zone 
where there was a competent magistrate of the flag state of that vessel or 
to turn it over to a cruiser of that vessel's nationality, if the latter consented 
to take charge of it. If the investigation by the magistrate proved that the 
flag was fraudulently used, the vessel would be put at the disposal of the 
captor. If slaves should be found on board or any other offense connected 
with the slave trade was proven, the vessel and cargo would remain 
sequestered in charge of the magistrate who had conducted the investigation 
until the vessel had been properly condemned and transferred to the captor, 
or declared innocent and permitted to continue on its course. The slaves were 
to be liberated by the local authority and either returned home or settled 
on the spot. If the vessel was illegally arrested, an indemnity had to be fixed 
by the magistrate in proportion to the damage suffered by the vessel being 
taken out of its course. If the officer of the capturing vessel disagreed as to 
the amount of the indemnity the matter had to be immediately submitted 
to arbitration. The captain and the crew of the vessel condemned for an 
offense were to be brought promptly before a tribunal of the nation whose 
flag had been used by the accused or to a specially commissioned authority 
of that nation. 

The main antagonists were satisfied with the final text. The British 
Government received the right to visit all likely slave-carrying vessels within 
the zone, and French vessels were freed from visit and search outside the 
zone. 40 Nevertheless, the French Chamber of Deputies refused to accept the 
provisions relating to the verification of the flag, and to preserve the treaty 
France was allowed to exclude these clauses in its ratification document. 41 
In consequence, the apparent consensus disintegrated and a shadow was 
thrown again on the right of visit and search. 

By the end of the 19th century, the measures taken under the Brussels Act 
contributed to the almost complete abolition of the slave trade, though it 
survived under various guises in a few places throughout the 20th century. 42 



50 Law of Naval Operations 

In revising the map of the world after the First World War, the victors decided 
to get rid of the cumbersome anti-slavery provisions of the Brussels Act, and 
replaced them as between the parties to one of the Saint-Germain Conventions 
of 1919, by a provision which merely contained a general statement that the 
parties will endeavor "to secure the complete suppression of slavery in all 
its forms and of the black slave trade by land and sea." 43 

In 1925, the British Government proposed to the League of Nations the 
adoption of a convention implementing the general provision of the 1919 
convention. It suggested strong enforcement measures including a provision 
that "[t]he act of conveying slaves on the high seas shall be deemed to be 
an act of piracy, and the public ships of the signatory powers shall have the 
same rights in relation to vessels and persons engaged in such act as over vessels 
and persons engaged in piracy/' It also would have provided for a decision 
by the courts and according to the laws of the country of the captor with 
respect to the validity of the capture of the vessel and the liberation of slaves, 
but for handing over of the persons engaged in the act of conveying slaves 
on the high seas to the authorities of their own country which was to bring 
them before its court. 

In view of a strong opposition to these proposals, the special committee 
to which this matter was referred limited the provision in Article 3, paragraph 
2, of the 1926 Convention on the Suppression of Slave Trade and Slavery to 
an undertaking to negotiate a convention based on an agreement concluded 
in 1925 relating to international trade in arms, which, in turn, contained 
enforcement provisions similar to those of the 1890 Brussels Act, including 
restrictions to native vessels of limited size, special zones, the right to verify 
the nationality of the suspected vessel, and the authorities entitled to decide 
about the illegality of the trade. 44 Article 3, paragraph 3, of the 1926 
Convention also authorized the parties to it "to conclude between themselves, 
without, however, derogating from the principles laid down in the preceding 
paragraph, such special agreements as, by reason of their peculiar situation, 
might appear suitable in order to bring about as soon as possible the complete 
disappearance of the slave trade." Neither these special agreements nor the 
supplementary convention envisaged in paragraph 2 of the Article have, 
however, been concluded, and the British effort was sidetracked again. 45 

After a lapse of almost thirty years, the indomitable British diplomats tried 
again, taking advantage of a 1951 report of the United Nations Ad Hoc 
Committee on Slavery which complained that the then existing arrangements 
for suppressing slave trade at sea were less satisfactory then those of the 1890 
Brussels Act. They suggested the preparation of a convention which would 
supplement the 1926 Convention by declaring slave trading on the high seas 
to be a "crime similar to piracy in international law," and subjecting slave 
trading to the same treatment and punishment as piracy. 46 The British 
Government presented such a draft convention in 1954. It contained provisions 



Sohn 51 

similar to those presented by it in 1925. It proposed to make slave trade 
equivalent to piracy, but instead of the detailed provisions relating to capture 
and legal proceedings against the vessel and the crews, it merely proposed 
that the "[pjublic vessels under the control of parties to this Convention shall 
have the same rights in relation to vessels engaged in [the act of conveying 
slaves on the high seas or slave-raiding] as they have in relation to vessels 
and persons engaged in acts of piracy." 47 A Drafting Committee appointed 
by the Economic and Social Council revised the British draft several times, 
and prepared a more elaborate article making clear that the provisions relating 
to the slave trade would apply only to specified areas of the Indian Ocean, 
and added a provision authorizing warships or military aircraft to exercise 
the same rights of visit, search and seizure in relation to vessels "suspected 
on reasonable grounds of being engaged in the act of conveying slaves as they 
have in relation to vessels so suspected of being engaged in acts of piracy." 
It limited the enforcement to vessels of parties to the proposed Convention, 
and a proposal to extend it to "stateless vessels" was withdrawn. 48 At the 
Conference held in 1956 to adopt the convention, strong opposition was 
expressed to the provisions relating to visit, search, and seizure by foreign 
warships. A more limited draft restricted to visit and search, and leaving 
further action to the flag state, was also rejected. 49 Consequently, the 1956 
Convention leaves the enforcement completely in the hands of the flag state. 
It requires only that states take effective measures to prevent the transport 
of slaves by ships and aircraft and to "punish persons guilty of such acts or 
of using a national flag for the purpose. " They must also exchange information 
to ensure practical coordination of measures for combating the slave trade. 
It is also provided that "[a]ny slave who takes refuge on board any vessel 
of the State Party to this Convention shall ipso facto be free." 50 

During the 1950s, in the context of the codification of the international 
law of the sea, the International Law Commission also encountered the 
question of the scope of the rule relating to the right to visit and search foreign 
vessels on the high seas. Its rapporteur, Professor J. P. A. Francois, in his first 
report stated that the "only police measure [on the high seas] allowed in time 
of peace is the right of approach, that is to say the right to ascertain the identity 
and nationality of the vessel, but not the right to check nationality by 
examination of ship's papers, and not, a fortiori, the right of search." After 
noting the British efforts to establish "the legality, if not of boarding foreign 
merchant vessels, at any rate of the verification of the flag," he pointed out 
that wireless telegraphy had almost eliminated the various reasons for which 
formerly vessels were induced to make material contact with each other on 
the high seas. 51 

In his second report, Professor Francois stuck to his position with respect 
to the main principle, but added three clarifications. Acts of interference may 
be allowed by a treaty; boarding and further action may be justified, if "there 



52 Law of Naval Operations 

is a reasonable ground for suspecting that the vessel is engaged in piracy;" 
and, if suspicion of piracy should "prove to be unfounded and should the 
stopped vessel not have given by unjustified acts any ground for suspicion, 
the vessel shall be compensated for any loss due to stoppage." 52 

In view of concurrent discussions in the United Nations Ad Hoc Committee 
on Slavery, 53 Professor Francois suggested that some special provisions on 
slave trade might be included in the International Law Commission's draft. 
He rejected, however, the proposal that slave trade be regarded as an act 
of piracy, permitting the stoppage and search of any vessel suspected of 
engaging in such a trade by any warship and taking it to a port of the captor 
for trial there by national courts. He pointed out the following differences 
between piracy and slave trade: 

Part at least of the ground for internationalizing the crime of piracy is that the acts 
occur on the high seas and that in many cases there are no relations between the pirate 
and a given country. The slave trade, on the other hand, takes place between two given 
countries. Since both these countries are bound to cooperate in repressing the slave trade, 
internationalization — meaning that the vessel may be conducted to any port for trial 
by the local courts — does not appear appropriate. 

He considered also that the right of control in this case should be limited 
to small vessels below a specified tonnage, and should not extend to the whole 
area of the high seas but to a limited area only where slave trade is still carried 
on, by analogy to the Berlin Act of 1890. M Finally, he made clear that a visit 
of a suspected vessel should be restricted to an examination of its papers, that 
examination of the cargo or search of the vessel is permissible only when, 
and to the extent, authorized by a convention to which the vessel's flag state 
is a party, that trial should be by the courts of the flag state of the captured 
vessel, and that in case of illegal arrest an indemnity would have to be paid. 55 
During the discussion of his report by the International Law Commission, 
Professor Francois pointed out that while old types of slavery were 
disappearing, the concept of slavery was being widened, thus threatening that 
vessels would be boarded "at all times and in all places," and increasing the 
hesitancy of states to accept the right of approach. When the prohibition of 
slavery and slave trade by the Universal Declaration of Human Rights 56 was 
invoked in order to justify the exercise of the right of approach "everywhere 
in respect of vessels suspected of being engaged in the slave trade," Francois 
replied that "[t]o recognize that the slave trade was prohibited was one thing, 
to recognize the right of approach was another." 57 

The Commission decided in 1951 that in the interests of stamping out the 
slave trade, the right of approach to ships engaged in the slave trade "should 
be put on the same footing as in the case of piracy, and hence should be 
permissible without regard to zone or tonnage." 58 Consequently, Professor 
Francois submitted the following proposal to the Commission concerning the 
right of approach, designed to safeguard the freedom of navigation and to 



Sohn 53 

prohibit, except in clearly defined cases, the boarding and inspection of ships 
on the high seas: 

Except where acts of interference are done under powers conferred by treaty, a 
warship which encounters a foreign merchant vessel at sea is not justified in boarding 
her or in taking any further action unless there is reasonable ground for suspecting that 
the vessel is engaged in piracy or in the slave trade. Should such suspicions prove to 
be unfounded and should the stopped vessel not have given by unjustified acts any ground 
for suspicion, the vessel shall be compensated for any loss due to the stoppage. 59 

In addition, he proposed the following separate article emphasizing the duty 
to cooperate in measures for the repression of the slave trade: 

All States are required to cooperate for the more effective repression of the slave 
trade. They undertake to adopt efficient measures to prevent the transport of slaves 
on vessels authorized to fly their colours and to prevent the unlawful use of their flag 
for the purpose. 

Any slave who has taken refuge on board a ship of war or a merchant vessel shall 
be ipso facto set free. 60 

Similar provisions on slave trade were included in the rapporteur's 1954 report 
and in the Commission's 1955 text. The 1954-55 texts contained also, for the 
first time, more elaborate provisions on piracy. 61 New difficulties did arise, 
however, with respect to the right-of-approach proposal. At the 1955 session 
of the Commission, Professor Scelle revived the traditional distinction 
between the right to verify the flag and the right to board and search, and 
pointed out that the existing situation was dangerous as the "exercise of the 
right of verification could easily, and almost imperceptibly, become an act 
of boarding and searching;" that it "was the thin edge of the wedge;" and 
that "such possibility should be guarded against." As a remedy he suggested 
that "verification should take place on board the investigating warship." 62 
In reply, Professor Francois explained that "the problem of the policing of 
the high seas was both complex and difficult." He pointed out that: 

It was generally accepted that warships had the right to demand that merchant vessels 
at sea should show their flag upon request. Such a request for identification was perfectly 
natural, because it was not the usual practice for merchant vessels continually to fly 
their flags at sea. It was also widely recognized that, if the merchant vessel refused 
to show her flag or gave an evasive reply, the warships had the right to investigate 
her identity. That, again, was an essential condition for the control of piracy. . . . 

Sanctions for unjustified verification had previously been provided in the form of 
damages, the award of which was to be made by one of two methods. The first, and 
more severe, was that whereby, if the suspicion proved to be unfounded, compensation 
must be rendered for any loss due to the stoppage. The second, and less stringent, 
provided for compensation to be paid if it could be shown that the vessel had been stopped 
for insufficient reason. He had chosen the first of those alternatives because of the 
liability to abuse in the application of the second owing to the difficulty of judging 
motives. 



54 Law of Naval Operations 

He opposed, however, the proposal that verification should take place on 
board the investigating warship, stressing "the danger in even a moderate 
sea of carrying the ship papers — the loss of which would be a most serious 
matter — to and from the investigating warship in a small open boat." With 
some exceptions, the practice of investigation on board the merchant vessel 
has been followed since 1659. 63 

Professor Scelle insisted, however, that the need to verify the flag goes 
far beyond piracy and slave trade, is essential for the general policing of the 
seas in view of the fraudulent practices in the registration of ships and the 
need to determine responsibility for any damage done by merchant vessels 
on the high seas by violating general rules on navigation or pollution. He 
added later that "it was as important to prevent ships from sailing under false 
colours as it was to suppress slavery and piracy." 

This view was opposed by several members of the Commission who wanted 
the right to verify a vessel's flag restricted to piracy and slave trade. The 
Scelle proposal for a general right of flag verification was rejected by a vote 
of 6 to 2, with 2 abstentions. 64 The rapporteur accepted more easily the 
suggestion that a warship should be allowed to board a foreign-flag vessel 
if there was a reasonable ground to suspect that the vessel was in fact of the 
same nationality as the warship. It was generally recognized also that a 
warship can verify the flag of merchant vessels flying the same flag as the 
warship, and can seize it and bring to a port of the flag state for punishment 
if the vessel was flying the flag without authority. 65 

Another controversy arose with respect to the right to visit and search a 
vessel when a warship has reason to suspect it of engaging, "during times 
of imminent peril to the security of the State, in activities hostile to the State 
of the warship." 66 This proposal was supported on the basis of the general 
principle of self-defense, but it was objected that this principle cannot be 
applied to boarding a vessel on the high seas on mere suspicion that it was 
threatening the security of a state, as such "exception to the principle of the 
freedom of navigation might destroy that freedom altogether, since States 
would tend to invoke the argument of legitimate defense to justify any act 
of interference." 67 As a result of that discussion, the Commission's comment 
to the article on the right of visit explained that the Commission found it 
inadvisable to provide for the right to board a vessel being suspected of 
committing acts hostile to the state to which the warship belongs, at a time 
of imminent danger to the security of that state, as there was a danger of 
abuse because of the vagueness of terms like "imminent danger" and "hostile 
acts." 68 

The draft of text and comments approved by the Commission in 1955 was 
only slightly changed in 1956, when the Commission adopted the final report 
for the Law of the Sea Conference. In this report the Commission extended 
the right to visit also to the situation where there is reasonable ground for 



Sohn 55 

suspecting that "while flying a foreign flag or refusing to show its flag, the 
vessel is, in reality, of the same nationality as the warship." The Commission 
explained that in this case "it can be presumed that the vessel has committed 
unlawful acts and the warship should be at liberty to verify whether its 
suspicions are justified." At the same time, the Commission limited the 
boarding of ships suspected of slavery to maritime zones treated as suspect 
in the international conventions for the abolition of slave trade, in order to 
ensure that the right of control would not be used as a pretext for exercising 
the right of visit in waters where the slave trade would not normally be 
expected to exist. 69 

At the 1958 Law of the Sea Conference, the provisions on slave trade were 
strongly attacked by delegations of several African and Eastern European 
states. For instance, Mr. Ben Salem (Tunisia) argued that: 

No state had the right to police the high seas. No state had the right to interfere with 
the ships of another State on the high seas. The provisions relating to the slave trade 
and piracy were of purely historical interest. The provision regarding action based on 
a suspicion that a ship was engaged in the slave trade should not be used as a pretext 
for inspecting a ship when there was no warrant for such suspicion. Warships, although 
they had the right to determine what flag a foreign ship was flying, did not have the 
right to determine whether it had the right to fly the flag, or a fortiori, the right to visit 
the ship. Unfortunately, the fears he was voicing on the subject were justified by a 
number of acts of interference which had been committed recently . . . [Cjertain states 
had arrogated to themselves the right to inspect and detain ships of other states on the 
high seas as if they owned the high seas. Such an act was an infringement of the law 
and a violation of the principle of the freedom of the seas. 70 

Mr. El Erian (United Arab Republic, later Egypt) considered that there 
was no justification for a provision allowing warships to board ships suspected 
of engaging in slave trade in certain maritime zones specified in the 1890 Act 
of Brussels. While such provision had perhaps been justified in the nineteenth 
century, conditions had changed since, as was recognized in the 1919, 1926, 
and 1956 conventions on abolition of slavery which contained no such 
provisions. Such a provision "was objectionable and a potential source of 
disputes." 71 Egypt proposed, therefore, the deletion of the provision presented 
by the International Law Commission. 72 Mr. Keilin (Soviet Union) supported 
such deletion for several reasons: 

In the first place, would it not be discriminatory automatically to regard certain maritime 
zones as suspect in the matter of the slave trade? It was well known which countries 
had warships cruising in those neighbourhoods and had interests which would be served 
by the right of visit thus established. Secondly, it was inadmissible and unjustified to 
presume that ships in the "suspect" zones were engaged in the slave trade; such a 
suspicion would probably only be a pretext for controlling maritime trade in violation 
of the principle of the freedom of the high seas. Thirdly, the sub-paragraph was in no 
way necessary for effectively combating the slave trade, and it seemed that the 
International Law Commission had allowed itself to be influenced by happenings in a 
former age in an entirely different set of circumstances, of which the memory lay 
sleeping in the dust of archives. Finally, the provision ran counter to the Supplementary 
Convention on Slavery of 1956, article 3 of which laid down that the transport or 



56 Law of Naval Operations 

attempted transport of slaves from one country to another was a penal offence and that 
persons found guilty of such offences were liable to severe penalties. The suppression 
of such offences could and should be undertaken by the States of which the flag was 
flown by the ships attempting to engage in the transport of slaves. 73 

The Egyptian amendment was defeated in the Second Committee of the 
Law of the Sea Conference by 22 votes to 16, with 11 abstentions. 74 One of 
the abstainers was Ghana, which objected primarily to the restriction of the 
right to board ships suspected of slave trade to a specific region. Its delegation 
preferred a provision that would allow the boarding of "ships suspected of 
slaving wherever they might be." 75 The idea was revived at the time of the 
final vote in the plenary meeting of the Conference, where South Africa 
proposed the deletion of the reference to the maritime zones suspected of 
slave trade, as a counterproposal to the proposal by the United Arab Republic 
and Saudi Arabia to completely delete the provision granting the right to 
board ships suspected of slave trade. The South African proposal was approved 
by 32 votes to 25, with 15 abstentions, and the other proposal was withdrawn. 
The right to board article was then approved by 62 votes to none with 9 
abstentions. 76 

As a result of these developments the 1958 Convention on the High Seas, 77 
which — according to its preamble — is "generally declaratory of established 
principles of international law," contains eight elaborate articles on piracy, 
a general article concerning national measures to prevent and punish the 
transport of slaves, and an article allowing boarding of foreign merchant 
vessels on the high seas in three specified cases. 

One of the piracy articles is the only article which provides expressly for 
the seizure of the pirate vessel or aircraft, the arrest of the persons and a 
decision of all issues by the court of the state of the warship that captured 
the private ship or aircraft. Article 19 provides, in particular, as follows: 

On the high seas, or in any other place outside the jurisdiction of any State, every State 
may seize a pirate ship or aircraft, or a ship taken by piracy and under the control of 
pirates, and arrest the persons and seize the property on board. The courts of the State 
which carried out the seizure may decide upon the penalties to be imposed, and may 
also determine the action to be taken with regard to the ships, aircraft or property, 
subject to the rights of third parties acting in good faith. 

Article 13 imposes on each state the following general obligation with 
respect to the maritime slave trade: 

Every State shall adopt effective measures to prevent and punish the transport of slaves 
in ships authorized to fly its flag, and to prevent the unlawful use of its flag for that 
purpose. Any slave taking refuge on board any ship whatever its flag, shall, ipso facto, 
be free. 

Finally, Article 22 authorizes the following minimal rights of interference 
with foreign ships on the high seas: 



Sohn 57 

1. Except where acts of interference derive from powers conferred by treaty, a warship 
which encounters a foreign merchant ship on the high seas is not justified in boarding 
her unless there is reasonable ground for suspecting: 

(a) That the ship is engaged in piracy; or 

(b) That the ship is engaged in the slave trade; or 

(c) That, though flying a foreign flag or refusing to show its flag, the ship is, in reality, 
of the same nationality as the warship. 

2. In the cases provided for in sub-paragraphs (a), (b), and (c) above, the warship may 
proceed to verify the ship's right to fly its flag. To this end, it may send a boat under 
the command of an officer to the suspected ship. If suspicion remains after the documents 
have been checked, it may proceed to a further examination on board the ship, which 
must be carried out with all possible consideration. 

3. If the suspicions prove to be unfounded, and provided that the ship boarded has not 
committed any act justifying them, it shall be compensated for any loss or damage that 
may have been sustained. 

The corresponding articles of the 1982 Law of the Sea Convention 78 contain 
only minor changes. Article 99, now entitled "Prohibition of the transport 
of slaves," and Article 105, now entitled "Seizure of private ship or aircraft, ,, 
repeat word for word Articles 13 and 19 of the High Seas Convention. Only 
a few changes were made in Article 110 on the "Right to visit," which 
corresponds to Article 22 on the High Seas Convention. In the text of Article 
110, which follows, the changes and additions have been highlighted: 

1. Except where acts of interference derive from powers conferred by treaty, a warship 
which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity 
in accordance with Articles 95 and 96, is not justified in boarding it unless there is reasonable 
ground for suspecting that: 

(a) the ship is engaged in piracy; 

(b) the ship is engaged in the slave trade; 

(c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction 
under Article 109; 

(d) the ship is without nationality; or 

(e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, 
of the same nationality as the warship. 

2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship's 
right to fly its flag. To this end, it may send a boat under the command of an officer 
to the suspected ship. If suspicion remains after the documents have been checked, it 
may proceed to a further examination on board the ship, which must be carried out 
with all possible consideration. 

3. If the suspicions prove to be unfounded, and provided that the ship boarded has not 
committed any act justifying them, it shall be compensated for any loss or damage that 
may have been sustained. 

4. These provisions apply mutatis mutandis to military aircraft. 



58 Law of Naval Operations 

5. These provisions also apply to any other duly authorized ships or aircraft clearly marked and 
identifiable as being on government service. 

It may be noted that the 1958 text deals only with the interference by a 
warship with a "foreign merchant ship" on the high seas. It does not apply 
to an encounter between two warships, or between a warship and a 
government ship operated only for non-commercial purposes. 79 This last point 
was made more explicit in the new text, which makes it clear that a foreign 
ship can be boarded in the specified limited circumstances only if it is "other 
than a ship entitled to complete immunity in accordance with articles 95 and 
96," namely, if it is a warship (Article 95) or a ship "owned or operated by 
a State and used only on government non-commercial service." 

While the "warship" that is permitted to interfere is narrowly defined in 
the 1958 Convention as a ship belonging to the naval forces of a State, properly 
marked as such, commanded by a duly commissioned naval officer and manned 
by a crew under regular naval discipline, 80 the 1982 Convention on the Law 
of the Sea permits action under Article 110 to be taken also by a military 
aircraft, as well as "duly authorized ships or aircraft clearly marked and 
identifiable as being on government service." 81 Thus, even though it might 
have been doubtful whether the Coast Guard was entitled to act under the 
1958 Convention, it has a clear right to take action under the 1982 Convention 
provisions to the extent that they are generally accepted as rules of customary 
international law. 82 

The 1958 and 1982 Conventions have broadened in two ways the field of 
applicability of the 1890 General Act of Berlin: their provisions are applicable 
to all vessels, not as previously only to vessels of less than 500 tons; and they 
are applicable to all the oceans, not only to a small part of the Indian Ocean 
and its subsidiary seas and gulfs. 83 

Finally it should be noted that originally there were only two grounds for 
stopping a foreign ship, namely the existence of reasonable grounds for 
suspecting that the ship is engaged in piracy or slave trade. Later, the case 
was added of a ship suspected of concealing the fact that it was of the same 
nationality as the warship. The 1982 Convention went two steps further, 
adding ships suspected of being "without nationality," and — under strong 
pressure by Western European countries — ships suspected of engaging in 
unauthorized broadcasting. 84 In the latter case, only warships of three 
categories of countries and two specific groups of countries were allowed 
to board such ships, namely, those of the flag State of the ship; the State of 
registration of a high seas installation; the State of which the person engaged 
in broadcasting is a national; any State where the transmissions can be 
received; or any State where authorized radio communication is suffering 
interference. 85 While illegal broadcasting belongs clearly to a special 



Sohn 59 

category, it was included because of the existence of the European regional 
convention on the subject. 86 

The question of control over stateless vessels arose several times in previous 
discussions, especially after the controversial British law of 1839, 87 and more 
recently at the 1958 Conference on the Law of the Sea, where the subject 
became complicated by the fear that a warship might be able to stop any 
vessel on the high seas by claiming that the vessel is stateless because there 
was no genuine link between the vessel and the flag state. 88 The inclusion 
of the right to board stateless vessels in the 1982 Convention was due to the 
general acceptance of the proposition that it was dangerous to have ships 
sailing on the high seas which were not subject to the jurisdiction of any State, 
and being law unto themselves did not comply with any generally accepted 
international regulations to ensure safety at sea. Consequently, the rule was 
adopted that such a ship can be stopped by any warship and dealt with 
according to the law of the warship's State. 89 It is not clear what would happen 
if the examination should show that the stopped ship has complied with all 
international regulations and there was no valid reason for interfering with 
its navigation. In any case, the persons on board the ship should be treated 
in accordance with the internationally recognized human rights, and if they 
have not been found engaged in any illegal activity, their basic "right to life, 
liberty and the security of person'' should be recognized. 90 Unless these 
persons are also stateless, they may be entitled to the protection of the State 
of their nationality regardless of the fact that they are travelling on a stateless 
vessel. 91 Even if they are stateless, they are entitled to basic human rights. 92 

An additional complication is caused by the provisions in the 1958 
Convention on the High Seas and of the 1982 Law of the Sea Convention, 
which establish the rule that a "ship which sails under the flags of two or 
more States, using them according to convenience, may not claim any of the 
nationalities in question with respect to any other State, and may be 
assimilated to a ship without nationality." 93 Some states have considered this 
provision as a license to treat such a ship and its crew in any way they please, 
forgetting their obligations under international law of human rights. In 
particular, the rules about equal treatment and non-discrimination are 
applicable to the persons on these ships, and regardless of the place in which 
the alleged crime was committed they are entitled to be protected against 
governmental violations of internationally recognized human rights. 94 

III. Campaign Against Illicit Traffic in Narcotic Drugs 

There is another important difference between the 1958 and 1982 
Conventions. While the 1958 Convention on the High Seas contained no 
provision on illicit traffic in narcotic drugs, the 1958 Convention on the 



60 Law of Naval Operations 

Territorial Sea and the Contiguous Zone had a limited provision on the subject 
in Article 19, which read as follows: 

1. The criminal jurisdiction of the coastal State should not be exercised on board a 
foreign ship passing through the territorial sea to arrest any person or to conduct any 
investigation in connection with any crime committed on board the ship during its 
passage, save only in the following cases: 

(a) If the consequences of the crime extend to the coastal State; or 

(b) If the crime is of a kind to disturb the peace of the country or the good order 
of the territorial sea; or 

(c) If the assistance of the local authorities has been requested by the captain of the 
ship or by the consul of the country whose flag the ship flies; or 

(d) If it is necessary for the suppression of illicit traffic in narcotic drugs. 

2. The above provisions do not affect the right of the coastal State to take any steps 
authorized by its laws for the purpose of an arrest or investigation on board a foreign 
ship passing through the territorial sea after leaving internal waters. 

3. In the cases provided for in paragraphs 1 and 2 of this article, the coastal State shall, 
if the captain so requests, advise the consular authority of the flag State before taking 
any steps, and shall facilitate contact between such authority and the ship's crew. In 
cases of emergency this notification may be communicated while the measures are being 
taken. 

4. In considering whether or how an arrest should be made, the local authorities shall 
pay due regard to the interests of navigation. 

5. The coastal State may not take any steps on board a foreign ship passing through 
the territorial sea to arrest any person or to conduct any investigation in connection 
with any crime committed before the ship entered the territorial sea, if the ship, 
proceeding from a foreign port, is only passing through the territorial sea without 
entering internal waters. 95 

This convention thus authorized the coastal states to arrest any person or 
to conduct any investigation on board a foreign ship passing through their 
territorial sea, if it is necessary for "the suppression of illicit traffic in narcotic 
drugs," subject to conditions specified in paragraphs 3 and 5, and paying "due 
regard to the interests of navigation" (paragraph 4). 

This provision can be traced to a more limited suggestion of the 
International Law Commission, that was due to an initiative of the 
Government of Israel which called to the attention of the Commission the 
fact that its draft on* the regime of the territorial sea contained no mention 
of the right of the coastal state to take steps to suppress illicit traffic in narcotic 
drugs. 96 In 1956, at the last session of the Commission devoted to the law 
of the sea, Professor Francois, the Rapporteur of the Commission on the 
regime of the territorial sea, was asked whether a reference on this subject 
should be added in the text of the article relating to the arrest on board a 
foreign vessel in the territorial sea. He replied that the paragraph allowing 
coastal state action if the consequences of a criminal act extended beyond 
the vessel would almost always apply to the illicit traffic in narcotic drugs. 97 



Sohn 61 

The final report of the Commission added a sentence in the commentary to 
Article 20, stating that an "arrest for the purposes of suppressing illicit traffic 
in narcotic drugs may be justifiable, if the condition in sub-paragraph (a) is 
fulfilled," i.e., if "the consequences of the crime extend beyond the ship." 98 

At the 1958 Conference on the Law of the Sea the issue was revived by 
Pakistan, which proposed the addition of a sub-paragraph in Article 20, which 
would allow the coastal state, in certain specified circumstances, to arrest 
a person on board a foreign ship passing through the territorial sea, "[i]f it 
is necessary for the suppression of illicit traffic in narcotic drugs." 99 

The First Committee of the Conference adopted this proposal by 33 votes 
to 8, with 30 abstentions, after a short discussion. 100 On the one hand, it was 
argued by the representative of Turkey that this proposal dealt with an issue 
of such importance that the proposal should be broadened; it should not be 
limited to the territorial sea as "the question of illicit traffic in narcotic drugs 
was of universal concern." 101 On the other hand, some delegates thought that 
this addition was not necessary, as it was covered by other subparagraphs 
of Article 20, relating to the right of arrest if "the consequence of the crime 
extend beyond the ship," or "the crime is of a kind to disturb the peace of 
the country or the good order of the territorial sea." 102 The representative 
of Norway doubted whether such provision would assist in suppressing illicit 
traffic in narcotic drugs, as "it was difficult to imagine cases where crimes 
of the kind envisaged in the Pakistan proposal would actually have been 
committed on the ship during its passage." He also noted that the proposed 
text would enable the coastal state to detain and search ships on mere 
suspicion, causing delays and derogating considerably from the right of 
innocent passage. He suggested that a "coastal State which had good reason 
to suspect that a ship passing through the territorial sea was being used for 
purposes of illicit traffic in narcotic drugs would be better advised to alert 
the ship's first port of call, where appropriate action could be taken. 103 

Article 20 of the Territorial Sea Convention with only minor drafting 
changes became Article 27 of the 1982 Law of the Sea Convention. In 
particular, the provision relating to narcotic drugs was changed slightly, 
allowing arrest of any person on board or an investigation, if "such measures 
are necessary for the suppression of illicit traffic in narcotic drugs or 
psychotropic substances." 104 

Although the 1958 Convention on the High Seas contained no provision 
on narcotic drugs, a basic provision on the subject was included in Article 
108 of the 1982 Convention on the Law of the Sea. No complementary 
provision was included, however, in Article 110 relating to the right of visit. 
This is especially surprising in view of the fact that the other new 1982 version, 
the one relating to unauthorized broadcasting — discussed above — is followed 
up by listing that activity as one of those justifying boarding a suspected vessel. 
In addition, Article 109, paragraph 4, makes clear that any one of the states 



62 Law of Naval Operations 

specified in that article "may, in conformity with article 110, arrest any person 
or ship engaged in unauthorized broadcasting and seize the broadcasting 
apparatus." There are no parallel provisions with respect to illicit traffic in 
narcotic drugs. 

It has to be noted, however, that during the drafting of Articles 108 and 
109 suggestions were made for strengthening these provisions for the control 
of illegal traffic in narcotic drugs. The United Kingdom delegation, true to 
its tradition of support for the policing of the high seas, suggested in 1974 
that the convention on the law of the sea should contain provisions with regard 
to ships found trafficking in narcotics. 105 A draft was soon presented which, 
in addition to language that, with minor changes, became the text of 
paragraphs 1 and 2 of Article 108 of the Convention, contained the following 
proposal: 

Any state which has reasonable grounds for believing that a vessel is engaged in illicit 
traffic in narcotic drugs may, whatever the nationality of the vessel but provided that 
its tonnage is less than 500 tons, seize the illicit cargo. The State which carried out 
this seizure shall inform the State of nationality of the vessel in order that the latter 
State may institute proceedings against those responsible for the illicit traffic. 

This proposal was included in this form in the Second Committee's basic 
compilation of proposals expressing the "main trends" at the Conference on 
a particular topic, together with a suggestion that a reference to psychotropic 
substances should be added in appropriate places. 106 Nevertheless, when the 
Chairman of the Second Committee prepared in 1975 the first "informal single 
negotiating text," he included the two other paragraphs in Article 94 of his 
text, but omitted the clause allowing the seizure of illegal cargo by any state, 
and providing for the punishment by the flag state of the persons responsible 
for the illegal traffic. 107 The delegation of Peru revived the issue in 1980, when 
it recommended both adding in Article 108 a provision on cooperation with 
the coastal state in case of seizure of a foreign vessel in that state's exclusive 
economic zone by a warship of a third state, and an addition in Article 110 
of a provision allowing boarding on the high seas of vessels engaged in the 
illicit traffic in narcotic drugs or psychotropic substances. 108 Neither of these 
proposals was incorporated in the final text. 

Consequently, there is no mention of illicit traffic in narcotic drugs in 
Article 110, and Article 108 provides only that: 

1. All States shall co-operate in the suppression of illicit traffic in narcotic drugs and 
psychotropic substances engaged in by ships on the high seas contrary to international 
conventions. 

2. Any State which has reasonable grounds for believing that a ship flying its flag is 
engaged in illicit traffic in narcotic drugs or psychotropic substances may request the 
co-operation of other States to suppress such traffic. 

Three issues raised by this provision need to be emphasized. In the first 
place, the obligation to "co-operate" is generally considered as a "weak" 



Sohn 63 

obligation, merely a promissory note, which requires implementation by more 
detailed provisions, such as those relating to piracy (1982 Convention on the 
Law of the Sea, Articles 101-107) or unauthorized broadcasting (Article 109, 
paragraphs 2-4 and 110, paragraph 1(c)). 

Second, paragraph 2 is carefully restricted. Only the flag state is entitled 
to ask other states for co-operation in catching one of its ships, if it has 
reasonable grounds for believing that this ship is engaged in illicit traffic in 
narcotic drugs. The opposite side is not mentioned — whether another state 
is entitled to ask the flag state to allow the boarding of a suspected vessel 
sailing under that flag. This is a clear case of "don't call me, I'll call you," 
designed to protect the flag state against finding itself in the unpleasant 
situation where it would have to permit boarding, as otherwise it would be 
suspected of assisting the drug trafficker. Its right to protect its vessels against 
possibly unwarranted interference is thereby destroyed for all practical 
purposes. Consequently, instead of a practice of ad hoc arrangements, flag 
states are likely to prefer the conclusion in advance of a basic agreement that 
would spell out the permitted measures and would provide some guarantee 
against possible abuses. 109 

Third, paragraph 1 allows only the suppression of high seas traffic in 
narcotic drugs and psychotropic substances which is "contrary to 
international conventions." The obligation to co-operate thus depends on the 
content of several conventions relating to such drugs and substances which 
have been adopted since 1912. 110 These conventions developed a system of 
co-operative arrangements for the suppression on illicit traffic in narcotic 
drugs and psychotropic substances through control of manufacture, and of 
export and import, of such drugs and substances, exchange of information 
on illicit activities, and acceptance of an obligation to punish or extradite 
the offenders. 

All the previous conventions on the subject were replaced in 1961 by the 
Single Convention on Narcotic Drugs, 111 which in turn was amended by a 
1972 Protocol. 112 This convention improved the system of international control 
through strict limitation of manufacture, exports and imports of an increasing 
list of drugs. The States Parties to the convention agreed to co-operate closely 
in a co-ordinated campaign against the illicit traffic in narcotic drugs and 
to assist each other in the campaign; 113 they agreed also to punish adequately 
the persons involved in such traffic, including those found guilty of intentional 
participation in, conspiracy to commit and attempts to commit, the offenses 
(listed in the convention) that were connected with such traffic. 114 It should 
be noted, however, that no mention was made of any special co-operation 
with respect to any activities at sea, although it was known that a large 
proportion of illicit traffic was using ships for smuggling the drugs. The 1972 
Protocol strengthened the extradition provisions of the 1961 Convention, but 
again was silent on facilitating action against vessels engaged in illicit 



64 Law of Naval Operations 

traffic. 115 Similarly, the parallel provisions of the 1971 Convention on 
Psychotropic Substances did not mention enforcement at sea. 116 

During the 1970s the United States mounted a comprehensive effort to stem 
the increasing flood of illicit drugs into the United States, and developed a 
program of interdiction on the high seas of vessels suspected of carrying 
narcotics to the United States. To justify the program under international 
law, the United States relied sometimes on the analogy to slavery, arguing 
that persons addicted to drugs are enslaved both to a dangerous habit and 
to the drug traffickers on whom they slavishly depend, willing to do anything 
to obtain the drugs needed to satisfy their constant craving for narcotics. 117 
Although the United States was reluctant to utilize the treaty process 
envisaged by the introductory phrase in Article 22 of the Convention on the 
High Seas and by the parallel provision in Article 110 of the Law of the Sea 
Convention, it started concluding informal arrangements with other 
countries, especially Latin American ones, which established an informal 
procedure for obtaining in each case a permission to board a particular vessel. 
A 1980 note by the United States to the United Kingdom describes these 
arrangements as follows: 

Upon initially intercepting a suspicious vessel the Coast Guard seeks, without boarding 
the vessel, to establish its identity and to develop other pertinent information. On the 
basis of this information, the government of the claimed or displayed nationality of 
registration is contacted to verify the claim or display of nationality. If this claim is 
not verified or is otherwise demonstrated to be false, the United States Coast Guard 
may then approach the suspected vessel and proceed against it, as if it were a United 
States flag vessel, in accordance with the principles relating to stateless vessels embodied 
in Articles 6 and 22 of the Geneva Convention on the High Seas. If, however, the claim 
or display of nationality is verified, and absent other facts, a special arrangement must 
be entered into with the flag state if the Coast Guard is to be allowed to board, search, 
and, if contraband is found seize the foreign flag vessel. Only after an arrangement has 
been reached does the United States Coast Guard take action with respect to the 
suspected vessel, and then only in strict compliance with the arrangement. 

In some cases the government concerned grants the Government of the United States 
permission to board, search and, if contraband is found indicating a violation of United 
States law, seize the vessel under United States law and take all further actions 
concerning the vessel under United States law. Alternatively, some governments grant 
the Government of the United States permission to board and search and, if contraband 
is found, seize the suspected vessel and hold it for further action by the flag state. In 
the latter case, the suspected vessel is normally taken to a port in the United States 
where it is held for flag state authorities. The contraband is destroyed by the Government 
of the United States, with only evidentiary samples being retained. The crew is either 
expelled from the United States to their country or countries of nationality or prosecuted 
under United States law if there is sufficient evidence of intent to smuggle the narcotics 
into the United States. Due to United States constitutional restraints the Government 
of the United States cannot normally enter into undertakings with the flag state to hold 
the crew for flag state prosecution. Furthermore, in pursuing the alternative of holding 
the vessel for flag state action, it is made clear to the flag state that once the vessel 



Sohn 65 

is in the United States the claims of third parties against the vessel may make it impossible 
for the Government of the United States to release the vessel to the flag state. 118 

As the United Kingdom authorities were not willing to proceed in such 
an informal manner, an agreement was negotiated by the United States with 
that country, in the form of an exchange of notes, 119 modelled to some extent 
on the liquor smuggling treaty of 1924. 120 This agreement is a unilateral one; 
it allows the United States to board on the high seas (for which the agreement 
substituted the phrase "outside the limits of the territorial sea and contiguous 
zone of the United States") vessels under the British flag. It does not give 
the reciprocal right to the United Kingdom to board vessels under the United 
States flag, perhaps because the United States Congress may be still reluctant 
to allow United States citizens to be arrested on the high seas by foreign 
officials and tried by foreign courts. The boarding is permitted only in two 
geographically limited areas, comprising, in the first place, the Gulf of 
Mexico, the Caribbean Sea, and a portion of the Atlantic Ocean West of 
longitude 55 West and South of latitude 30 North (i.e., a line drawn slightly 
East of the Antilles and then West to Florida), and, in the second place, an 
area extending 150 miles from the Atlantic coast, North of Florida. United 
States authorities are allowed to board in those areas private vessels under 
British flag "in any case in which those authorities reasonably believe that 
the vessel has on board a cargo of drugs for importation into the United States 
in violation of the law of the United States." 

The agreement relies on the generally recognized reason for boarding, 
namely the right of a warship (or Coast Guard vessel) to establish the 
nationality of a vessel on the high seas. The boarding party may for this 
purpose "examine the ship's papers;" it may also, in this instance, "address 
enquiries to those on board," and "take such other measures as are necessary 
to establish the place of registration of vessel." Then comes the shift: "When 
these measures suggest that an offense against the laws of the United States 
relative to the importation of drugs is being committed, the Government of 
the United Kingdom agrees that it will not object to the authorities of the 
United States instituting a search of the vessel." While this provision is far- 
reaching, it may be noted that it implies that the starting point for this 
reinforced suspicion cannot be a physical search of the ship (as this is the next 
step), but must be the result of findings derived from documents or statements 
by the captain or the crew. Finally, if the authorities of the United States 
have been led by the search to the belief that an offense against the anti- 
drug laws of the United States is being committed, then they are allowed 
to seize the vessel and take it into a United States port. 

As all these steps are to a large extent in the discretion of the authorities 
of the United States and lend themselves easily to abuse, the United Kingdom 
Government reserved to itself the right to object, within 14 days of the vessel's 



66 Law of Naval Operations 

entry into port, to further exercise of United States* jurisdiction, and the 
United States agreed that thereupon it would release the vessel without 
charge. Similarly, if the United Kingdom, within 30 days of the vessel's entry 
into port, objects to the prosecution of any United Kingdom national found 
on board, such person has to be released by the United States. On the other 
hand, in a departure from the traditional rule that the flag state is entitled, 
and perhaps even obliged, to protect the members of the crew of its vessels 
regardless of their nationality, 121 the United Kingdom agreed that it "will 
not otherwise object to the prosecution of any other person found on board 
the vessel." In order to enable the United Kingdom to make these requests, 
in every case of boarding of a vessel under the British flag the United States 
"shall promptly inform the authorities of the United Kingdom of the action 
taken and shall keep them fully informed of any subsequent development/ ' 

There is finally a weak provision for the settlement of disputes under this 
agreement, especially those relating to any loss or injury "suffered as a result 
of any action taken by the United States in contravention of these 
arrangements or any improper or unreasonable action taken by the United 
States pursuant thereto. ,, In such a case, "representatives of the two 
Governments shall meet to decide any question relating to compensation." 
If they don't agree, there is no other recourse, as surprisingly there is no 
arbitration treaty between the two countries despite the fact that in the past 
they have found it possible to submit many claims to arbitration. 

There is not a perfect model, but a good beginning. Perhaps it is even too 
good, as the United States has not embarked, as it did in 1924, on a diplomatic 
effort to have similar agreements with all other interested States. It is possible 
that the mild restrictions of the United Kingdom agreement on possible abuse 
of power by the United States authorities are found too uncomfortable; and 
that these authorities prefer instead to obtain ad hoc consent for each search 
and seizure, 122 or even to pretend that the fact that the flag State did not 
later object is equivalent to an ex post facto ratification of the seizure. 123 It 
is in order to avoid such abuses of the basic rules of the international law 
of the sea and of the interrelated rules of international human rights law, 
that the Law of the Sea Conventions require "a treaty" properly defining 
the allowable searches and seizures and providing at least some minimum 
guarantees that the fate of the ship and of the captain and the crew will not 
be at the complete mercy of the foreign warship. 124 

At the same time, other countries became concerned about the growth of 
illicit traffic in narcotic drugs and the need for adequate international 
arrangements to deal with this issue. When the Commission on Narcotic 
Drugs established in 1982 an expert group to study the functioning, adequacy 
and enhancement of the 1961 Single Convention on Narcotic Drugs, Canada 
used this occasion to propose to that group the preparation of an "arrangement 
for law enforcement authorities to board vessels flying foreign flags." 125 The 



Sohn 67 

group of experts noted that "bilateral arrangements had been made in certain 
specified geographic areas whereby ships flying the flag of the other country 
concerned could be boarded and inspected in order to apprehend drug 
traffickers or to seize illicit narcotic drugs," and recommended the 
preparation of a study of existing agreements, analyzing their structure and 
functioning, and assessing their usefulness and advisability. 126 

On the basis of the experts' report, Canada, Italy, Pakistan and the United 
States presented a resolution to the Commission on Narcotic Drugs suggesting 
the adoption of certain modest measures "to improve international 
cooperation in the maritime interdiction of illicit drug traffic." 127 This 
proposal was adopted by the Economic and Social Council, with slight 
drafting changes; it emphasized the need for "effective steps by all States 
to provide, in accordance with relevant domestic constitutional safeguards 
and legislations, for prompt, positive and unmistaken identification of private 
vessels registered under their flags," and recommended several steps to 
achieve this goal. 128 . Neither the four states' proposal, nor the Council's 
resolution mentioned, however, the problem of boarding foreign vessels. 

Nevertheless, a report by the Secretary-General noted that the Commission 
on Narcotic Drugs and the United Nations Secretariat's Division on Narcotic 
Drugs have started studying the possible ramifications of the 1982 Law of 
the Sea Convention, especially of Article 27 (criminal jurisdiction on board 
a foreign ship in the territorial sea) and Article 108 (cooperation with respect 
to illicit traffic on the high seas), as well as of the effect of provisions 
broadening the jurisdiction of the coastal States by increasing the breadth 
of the territorial sea and the contiguous zone and the establishment of the 
exclusive economic zone and archipelagic waters. The view was expressed 
that some States seem to expect that "the complex problems States face in 
intercepting vessels suspected of smuggling drugs may be overcome with the 
entry into force of the Convention, in particular, that drug law enforcement 
agencies of States Parties would have a greater ability to take action in respect 
of foreign ships in extended areas under their jurisdiction." 129 It was this 
approach that the United Kingdom and the United States were trying to avoid 
in their 1981 agreement 130 by substituting for the "high seas" a reference to 
the area "outside the limits of the territorial sea and the contiguous zone," 
thus indicating indirectly that a coastal State's jurisdiction with respect to 
the control of drug trafficking does not extend beyond the limits of the 
contiguous zone and does not, in particular, apply to the vast extent of the 
exclusive economic zone. 

Another approach was tried by two (partly overlapping) groups of Latin 
American countries, which proposed in 1984, respectively, that "traffic in 
narcotic drugs should be considered a crime against humanity, with all the 
legal consequences implicit therein," and that a "special conference should 
consider declaring drug trafficking to be a crime against humanity, since it 



68 Law of Naval Operations 

seriously affects people's lives, health and welfare, has a negative impact on 
the economic and social system and poses a danger to the stability of 
democratic processes in Latin America. " 131 These proposals led to the adoption 
by the General Assembly of a resolution, supported by several additional 
countries of the Americas, Asia and Africa, including Canada and the United 
States, requesting the Commission on Narcotic Drugs to initiate the 
preparation of a "draft convention against illicit traffic in narcotic drugs" 
which would deal, in particular, with problems "not envisaged in existing 
international instruments." 132 A draft convention, prepared by Venezuela, 
was annexed to the resolution; it would have condemned trafficking in 
narcotic drugs or psychotropic substances as "a grave international crime 
against humanity," and would have provided also for "imprescriptibility of 
the crimes" and "mutual assistance in combating illicit trafficking." 133 A 
parallel Declaration on the Control of Drug Trafficking and Drug Abuse was 
adopted by the General Assembly at the same time; it also condemned drug 
trafficking, but called it only "an international criminal activity." 134 The 
delegate of the United Kingdom immediately objected to the application of 
the concept of the crime against humanity, which had "specific connotations 
in international law," and "would give rise to prolonged and unproductive 
discussion." 135 On the other hand, the delegate of Argentina considered that 
drug trafficking was "a crime against humanity, and its declaration as such 
would make way for the formulation of precise legal definitions which would 
ensure that the crime was punished and that national borders were no longer 
used as shields for committing it." 136 

At the 1985 meeting of the Commission on Narcotic Drugs, several 
representatives made clear that their governments would find it impossible 
to accept a convention that included drug trafficking in the definition of 
crimes against humanity which had "specific historical and legal 
connotations," or included the proposal to make drug traffic crimes 
imprescriptible, as this proposal would "run counter to the principles of 
widely accepted penal policy." Many representatives supported the inclusion 
in the proposed new convention of provisions designed "to strengthen the 
capacity of Governments to render mutual law enforcement and judicial 
assistance;" in particular, it was emphasized that "the present opportunity 
should be taken to consider the problem of drug smuggling by ship," especially 
in view of "the difficulty encountered in intercepting suspect vessels on the 
high seas." It was also suggested that drug trafficking on the high seas "be 
given the same status as piracy, in international law." 137 

The Commission asked in 1985 for comments and suggestions concerning 
the elements to be included in the proposed convention. Australia replied that 
it might prove difficult to incorporate in the convention "the concept of 
interception on the high seas of vessels involved in drug trafficking." The 
United Kingdom emphasized the importance of maintaining "the principle 



Sohn 69 

of free right of passage for ships on the high seas." Consequently, it 
proposed — together with the United States and Turkey — that any "provision 
allowing the stopping and boarding of vessels on the high seas . . . would 
have to make such intervention conditional upon the consent of the flag 
State." Egypt and Spain called attention to the 1982 Convention of the Law 
of the Sea and suggested that Article 108 of that convention could be 
elaborated upon in the new convention. Egypt and the United States revived 
the idea that "illicit traffic on the high seas might be assimilated to piracy 
and treated as such under applicable international law." To implement that 
concept, the United States proposed that the convention should provide "that 
a State may request another State [for] authority to board a vessel flying the 
latter's flag and seize, arrest and prosecute as appropriate when there are 
reasonable grounds to believe that such vessel is engaged in drug trafficking;" 
and that, upon receipt of such request, "the flag state would be required to 
take action to ensure that the vessel is not engaged, or permitted to engage 
further, in trafficking." Egypt, on the other hand, suggested that the new 
convention should take advantage of Articles 27 (criminal jurisdiction on 
board a foreign ship passing through the territorial sea) and 33 (contiguous 
zone) in order to cover also cases of illicit traffic in the territorial sea and 
the contiguous zone. 138 

Some of these comments were echoed at the next meeting of the 
Commission on Narcotic Drugs. Strong opposition was expressed to the 
"qualification of illicit traffic as a crime against humanity," and to 
imprescriptibility of traffic offenses. On the other hand, several 
representatives supported the inclusion of provisions allowing for 
"appropriate intervention on the high seas in cases of illicit drug traffic," 
and of provisions encouraging "[ijmproved co-operation and bilateral and 
regional agreements in this field." 139 The Commission decided accordingly 
to include as one of the elements in its guidelines for the drafting of the 
convention the strengthening of "mutual co-operation among States in the 
suppression of illicit drug trafficking on the high seas." 140 

In June 1986, the Division of Narcotic Drugs of the United Nations 
Secretariat, with the assistance of a group of experts volunteered by several 
nations (including the United States), prepared a preliminary draft on the 
convention, Article 12 of which dealt with "illicit traffic by sea." 141 At its 
1987 session, the Commission on Narcotic Drugs had also before it another 
series of comments by the governments, 142 including elaborate comments by 
the United States. 143 The Commission was able to engage only in a general 
discussion and a preliminary consideration of non-controversial articles and 
of the difficult definitional article (Article 1); there was no discussion of 
Article 12. 144 In the general debate, some representatives mentioned the need 
to strengthen Article 12, in order to make the high seas "off limits" to drug 
traffickers; others wanted to delete the provisions relating to search and 



70 Law of Naval Operations 

seizure of vessels, "because of the serious implications which their 
implementations could have in certain areas of international trade and also 
in view of their possible abuse by certain States." 145 

The Commission asked the Division of Narcotic Drugs to prepare a 
working document, consolidating all proposals, and recommended to the 
Economic and Social Council the establishment of an open-ended 
intergovernmental expert group to review that document, "to reach 
agreement on the articles of the convention, wherever possible, and to prepare 
a revised working document, " to be reviewed by the Commission at the 
beginning of 1988. 146 The Economic and Social Council approved this proposal 
in May 1987, 147 and a group of 135 experts from 57 countries met promptly 
in Vienna in June and July 1987, reviewed the Secretariat document, 148 and 
redrafted a number of articles of the draft convention, including Article 12. 149 

One further development should be mentioned, which stimulated action 
in this field. The International Conference on Drug Abuse and Illicit 
Trafficking, held at Vienna in June 1987, approved as Target 28 for suggested 
courses of action on national, regional and international levels, to establish 
control over ships on the high seas and aircraft in international airspace. In 
particular, the Conference suggested the following courses of action: 

At the national level. Should the ministry or authority concerned have reasonable grounds 
for suspecting that a vessel or aircraft registered under the laws of the State is illicitly 
carrying drugs, it may request another State to assist in carrying out a search: for 
example, that other State may be asked to direct its authorities to board and inspect 
the vessel and, if drugs are found, to seize them and arrest persons involved in the 
trafficking. In such circumstances, the State's own authorities may board or seize a vessel 
or aircraft registered under its laws. Subject to the provisions of international law, the 
law enforcement authorities should, to the fullest extent permitted by national law, 
undertake to board and seize a vessel unlawfully carrying drugs, provided that the 
authorization of the State of registry and, when applicable, of a coastal State has been 
obtained. A State should endeavour to respond promptly when asked for permission 
to stop, board and search a vessel under its registry for reasons of illicit drug trafficking 
control. Subject to the same considerations, an aircraft may be subject to search upon 
landing at a designated airport. 

The appropriate ministry or authority should, after the seizure of such a vessel or aircraft, 
deal promptly with illicit drugs and traffickers found thereon under the country's own 
laws if the conveyance is registered under that country's laws or, if registered under 
the laws of another State, pursuant to such agreement as is reached with the State of 
registry without unnecessary delay. 

States could authorize the appropriate agency or responsible authority to take 
appropriate action in these matters. This action might include the prompt 
communication of information indicating whether a particular vessel or aircraft is 
registered under the laws of the requested State and also authority to empower a 
requesting State to seize the suspect vessel or aircraft. 

At the regional and international levels. International bodies and States could consider whether 
international standards can be established for the identification, seizure and disposition 
of vessels and aircraft on the surface suspected of carrying drugs illicitly, and of the 



Sohn 71 

drugs and traffickers found thereon. States should also make every effort to conclude 
bilateral, multilateral and regional agreements to strengthen such co-operation between 
States. 150 

At the same time, the Conference made clear that "appropriate co-operative 
procedures need to be devised which do not interfere with legitimate passage 
of commerce," and which comply with "existing relevant conventions." 151 

In settling these issues, as shown over almost two hundred years of efforts, 
it did not prove easy to establish the balance between two aspects of national 
sovereignty — the freedom of a state's ship to navigate the oceans without 
interference by other states, and the right of other states to protect some 
important interests against a possibility of interference by foreign vessels 
engaged in a generally condemned activity. In the field of slavery, despite 
repeated efforts by some governments, international conferences consistently 
rejected any interference with foreign vessels which would go beyond the 
right to approach and to ascertain a vessel's flag and registration, and all 
attempts to equate slavery with piracy were unsuccessful. Once a vessel's 
nationality has been ascertained, any further action had to be deferred to the 
flag state. 

Are coastal states entitled to go further as far as illicit traffic in narcotic 
drugs is concerned? At the Third Law of the Sea Conference, only a few 
years ago, the decision went in the opposite direction, and the proposals to 
put drug trafficking on the same level as slavery were clearly rejected. In 
other negotiations, attempts to include illicit drug traffic among "crimes 
against humanity" were strongly opposed. There is clearly a hierarchy here — 
piracy, slavery, drug traffic; and the measures that may be taken against a 
vessel engaging in such activities diminish gradually. 

In the recent negotiations on the new convention against illicit traffic in 
narcotic drugs and psychotropic substances, the old arguments were often 
repeated, though sometimes in new, more modern guises. 

In particular as was noted previously, several proposals were made to 
declare that the traffic in illicit drugs was a "crime against humanity" or 
that it should be assimilated to "piracy." 152 In view of the strong opposition 
to these proposals by other Governments, 153 the Secretariat of the United 
Nations did not include this concept in its early drafts, 154 and no further 
mention was made of this issue. The United Kingdom was not able to achieve 
this objective with respect to slavery; now, it was the United States that was 
trying to achieve a similar goal with respect to the illicit drug traffic, but 
the opposition of the United Kingdom and other States made it impossible. 

Article 12 of the Secretariat's 1986 Draft 155 became the focus of the debate 
on the "illicit traffic by sea." To facilitate the comparison, the semifinal text, 
referred by the Commission on Narcotic Drugs in 1988 to the Plenipotentiary 
Conference, is also included here, the changes in the two texts being italicized, 
together with additions or omissions. 



72 Law of Naval Operations 
1986 Text: 

1. The Parties shall co-operate to 
the fullest extent possible to suppress 
the illicit traffic in controlled substances 
by sea. 

2. A Party which has reasonable 
grounds to suspect that a vessel 
registered under its laws is being used for 
the illicit traffic in controlled substances 
may request the assistance of other 
Parties in suppressing its use for that 
purpose. Parties so requested shall 
render such assistance, within the 
means available to them. 

3. A Party which has reasonable 
grounds to believe that a vessel is 
engaged in illicit traffic and is on the 
high seas as defined in Part VII of the 
United Nations Convention on the Law 
of the Sea may board, search and seize 
such a vessel if: 

(a) The vessel is registered under its 
law; or 

(b) That Party seeks and receives 
permission from the Party of registry; or 

(c) The vessel is not displaying a flag 
or markings of registry. 

4. A Party shall respond in an 
expeditious manner to requests from 
another Party to determine, for the 
purpose of paragraph 3 of this article, 
whether a vessel is registered under 
its laws, and to requests for permis- 
sion made pursuant to the provisions 
in that paragraph. Each Party shall 
designate an authority to receive and 
act upon such requests. The authority 
designated by each Party for this 
purpose shall be notified through the 
Secretary General to all other 
Parties. 



1988 Text: 

1. The Parties shall co-operate to 
the fullest extent possible to suppress 
the illicit traffic by sea. 



2. If a Party, which has reasonable 
grounds to suspect that a vessel flying 
its flag or not displaying a flag or markings 
of registry is being used for the illicit 
traffic, requests the assistance of other 
Parties in suppressing its use for that 
purpose, the Parties so requested shall 
render such assistance, within the 
means available to them. 

3. Without prejudice to any rights 
provided for under general international 
law, a Party, which has reasonable 
grounds for believing that a vessel that 
is beyond the external limits of the 
territorial sea of any State and is flying the 
flag of another Party is engaged in illicit 
traffic, may, if that Party has received 
prior permission from the flag State, 
board, search and, if evidence of illicit 
traffic is discovered, seize such a vessel. 



4 . For the purposes of paragraph 3 of this 
article, a Party shall respond in an 
expeditious manner to requests from 
another Party to determine whether 
a vessel is registered under its law 
and to requests for permission made 
pursuant to the provisions in that 
paragraph. At the time of adhering to the 
Convention, each Party shall designate 
an authority to receive and respond 
to such requests. The authority 
designated by each Party for this 
purpose shall be notified through the 
Secretary-General to all other 
Parties within one month of the 
designation. 



Sohn 73 



5. Where evidence of illicit traffic 
is found, the Party having custody of 
the vessel shall take appropriate 
action with respect to the vessel and 
persons on board, in accordance 
with: 

(a) Its own judicial requirements if the 
vessel is registered under its laws; or 

(b) Existing bilateral treaties, where 
applicable, or any agreement or 
arrangement otherwise reached at the 
time of seizure with the Party of registry. 

6. The right to challenge the nature or 
effect of the agreement or arrangement 
referred to in paragraph 5 (b) of this article 
shall rest exclusively with the Party of 
registry. 

1 . The Parties shall consider enter- 
ing into bilateral and regional 
agreements to carry out, or to 
enhance the effectiveness of, the 
provisions of this article. 



5. Where evidence of illicit traffic 
is found, the Party having custody of 
the vessel shall take appropriate 
action with respect to the vessel and 
persons on board, in accordance with 
treaties, where applicable, or any 
prior agreement or arrangement 
otherwise reached with the flag State. 



6. A Party which has taken any action 
contemplated in this article shall promptly 
inform the flag State concerned of the 
results of that action. 

7. The Parties shall consider enter- 
ing into bilateral and regional 
agreements to carry out, or to 
enhance the effectiveness of, the 
provisions of this article. 



No change was made in paragraph 7, and only minor changes were made 
in paragraphs 1 and 4. Paragraph 2 was redrafted slightly to include some 
phrases from the original paragraph 3 relating to a vessel that is not displaying 
a flag or markings of registry. Paragraphs 3 and 5 were the most controversial 
provisions. 

As far as paragraph 3 was concerned, it was already mentioned that the 
controversy over the status of the exclusive economic zone, which has plagued 
the Third United Nations Conference on the Law of the Sea, 156 was revived 
during the preparation of the draft convention against the illicit traffic in 
narcotic drugs and psychotropic substances. 157 The 1986 Secretariat Draft 
allowed the boarding of a suspected vessel "on the high seas as defined in 
Part VII of the United Nations Convention on the Law of the Sea." 158 Part 
VII, entitled "High Seas" does not actually define the high seas, but in Article 
86 merely states that it applies "to all parts of the sea that are not included 
in the exclusive economic zone, in the territorial sea or in the internal waters 
of a State, or in the archipelagic waters of an archipelagic State." At the 
same time, Article 86 makes clear, however, that this provision "does not 
entail any abridgement of the freedoms [of the high seas] enjoyed by all States 
in the exclusive economic zone in accordance with Article 58." Article 58, 
in turn, mentions expressly the freedom of navigation and the applicability 



74 Law of Naval Operations 

in the exclusive economic zone of Articles 88 to 115 and other pertinent rules 
of international law, thus including Articles 92 (exclusive jurisdiction of the 
flag State), 108 (illicit traffic in narcotic drugs), 110 (right of visit) and 111 
(right of hot pursuit ceases "as soon as the ship pursued enters the territorial 
sea of its own State or of a third State"). 159 

To avoid any conflict with respect to the meaning of the "high seas" phrase, 
the United States immediately proposed that the right to board a suspected 
vessel should extend to the whole area "outside the territory and the 
territorial sea of any State," thus including the contiguous zone and the 
exclusive economic zone within the area in which boarding does not require 
the consent of the coastal State. This proposal was without prejudice to the 
requirement of "prior consent of the State of registry. " 160 The United States 
proposal was accepted by the Intergovernmental Expert Group, whose draft 
authorized the boarding of a suspected vessel "beyond the external limits of 
the territorial sea of any State." The group also added, at the beginning of 
paragraph 3, the phrase "[wjithout prejudice to any rights provided for under 
general international law." 161 

At the 1988 session of the Commission on Narcotic Drugs, several 
representatives expressed reservations about paragraph 3. One of them 
proposed redrafting the first phrase to read: "Without prejudice to any rights 
conferred on the coastal State under the United Nations Convention on the 
Law of the Sea ..." Another one proposed, more elaborately, to revise that 
sentence as follows: "Without prejudice to the right deriving from the rules 
and principles of international law, particularly in the zone contiguous to the 
territorial sea." Alternately, that representative suggested a new paragraph 
3 reading: "The provisions of the preceding paragraph shall not affect the 
rights which the coastal State may exercise, in conformity with international 
law, in the zone contiguous to its territorial sea." Other representatives 
pointed out that the text adopted by the Expert Group "could imply that 
third States would be given certain rights in the area between 12 and 200 
miles (Exclusive Economic Zone) which were not contemplated in the 
Convention on the Law of the Sea." They argued, therefore, for restoring 
the original phraseology proposed by the Secretariat. In response, one 
representative supported the language proposed by the Expert Group on the 
ground that the International Maritime Organization, when faced with a 
similar issue in drafting the Convention on the Suppression of Unlawful Acts 
Against the Safety of Maritime Navigation, 162 decided also to use a phrase 
referring to jurisdiction "beyond the outer limits of the territorial sea." 163 

Other issues were also raised. One representative, taking into account 
Article 107 of the Convention on the Law of the Sea, suggested that "a search 
or seizure may be effected only by a ship and/or aircraft which was clearly 
marked and identifiable as being on government service and authorized to 
undertake such activities." 164 Another representative commented on 



Sohn 75 

paragraph 5, according to which, where evidence of illicit traffic is found, 
"the Party having custody of the vessel shall take appropriate action. ,, He 
pointed out that the notion of "custody of the vessel" covered a legal situation 
not contemplated by the draft convention, and proposed that the main part 
of the sentence be simplified to read: "the Party which has intercepted a vessel 
pursuant to paragraph 3 shall take appropriate action with respect to the vessel 
and persons on board, in accordance with treaties or with any prior agreement 
or arrangement reached with the flag State." 165 It may be noted that this text 
and the Commission's 1988 version differ here from the 1986 text by 
emphasizing the need for a "prior" agreement or arrangement, thus coming 
closer to Article 108 of the Convention on the Law of the Seas which allows 
measures going beyond a visit to verify the ship's right to fly its flag only 
"where acts of interference derive from powers conferred by a treaty." Two 
steps seem to be thus required: a prior agreement (under paragraph 7) 
establishing the means for obtaining permission allowing a foreign authority 
to go beyond a visit and to search or seize a ship; and an actual grant of 
approval for a particular action, i.e., to search the ship only, or to search 
arid, if evidence of illicit traffic is found, to seize that evidence (and transmit 
it to the flag State for further action), or to seize the ship and arrest the persons 
engaged in illicit traffic. 

Several representatives, by analogy to Articles 106 and 110, paragraph 3, 
of the Convention of the Law of the Sea, proposed that a new paragraph 
should be inserted in Article 12 to guarantee compensation for vessels that 
were subjected to unjustified search measures, to be paid by the State that 
organized the search and determined its scope. Although the flag State had 
granted its approval for a search, it should not bear responsibility as its 
permission was dependent on the information provided by the State requesting 
a search. 166 

Finally, one more general comment was made. One representative stressed 
that it should be stipulated in the preamble to the Convention that the 
measures envisaged in the Convention "must be consistent with human rights, 
respect the traditions and customs of national or regional groups and protect 
the environment." He also proposed that the Convention should indicate that 
"international co-operation, whether bilateral or multilateral, should develop 
free of pressures of any kind." 167 

At the end of the debate, several representatives expressed the following 
conclusions: that Article 12 provided "a workable mechanism to facilitate 
international co-operation against illicit traffic on the high seas;" that it "took 
into account the need not to interfere with legitimate rights of passage;" that, 
by requiring "the consent of the flag State prior to intervention, [it] preserved 
the important principle of flag State responsibility;" and that, in spite of the 
difficulties faced by some States, the article reflected the compromise reached 



76 Law of Naval Operations 

by the Expert Group, which merited consolidation by the Plenipotentiary 
Conference. 168 

Without making any changes itself, the Commission on Narcotic Drugs 
decided to forward draft Article 12 to the Plenipotentiary Conference "for 
appropriate consideration. ,,169 

On the Commission's recommendation, 170 the Economic and Social Council 
decided to convene a further group of experts to review the outstanding issues, 
and to convene thereafter a plenipotentiary conference to complete the 
negotiations and adopt the final version of the Convention. 171 

The United Nations Conference for the Adoption of a Convention Against 
Illicit Traffic in Narcotic Drugs and Psychotropic Substances met in Vienna 
from November 25 to December 20, 1988. The final text was adopted by 
consensus, without vote, on December 19, 1988, and 43 of the 106 States 
participating in the Conference signed it on December 20. The signatory states 
ranged from Afghanistan to Zaire, including China, the United Kingdom and 
the United States; France and the Soviet Union were not, however, among 
the original signatories. 172 The 35 substantive articles of the Convention 
impose upon the parties an obligation to take specific law enforcement 
measures to improve their ability to deal more effectively with various aspects 
of illicit traffic in narcotic drugs having an international dimension (Article 
2). 173 In the preamble to the Convention, the parties recognize that "the illicit 
traffic is an international activity, the suppression of which demands urgent 
attention and highest priority;" and express, in particular, their determination 
"to improve international cooperation in the suppression of illicit traffic by 
sea. 

The final text, as revised by the May 1988 Review Group 174 and the 
Conference, deals with maritime interdiction in Article 17; in addition, 
certain jurisdictional aspects are dealt with in Article 4(l)(b)(ii). 
The final text of Article 17 reads as follows: 

1. The Parties shall co-operate to the fullest extent possible to suppress illicit traffic 
by sea, in conformity with the international law of the sea. 

2. A Party which has reasonable grounds to suspect that a vessel flying its flag or not 
displaying a flag or marks of registry is engaged in illicit traffic may request the assistance 
of other Parties in suppressing its use for that purpose. The Parties so requested shall 
render such assistance within the means available to them. 

3. A Party which has reasonable grounds to suspect that a vessel exercising freedom 
of navigation in accordance with international law and flying the flag or displaying 
marks of registry of another Party is engaged in illicit traffic may so notify the flag 
State, request confirmation of registry and, if confirmed, request authorization from 
the flag State to take appropriate measures in regard to that vessel. 

4. In accordance with paragraph 3 or in accordance with treaties in force between them 
or in accordance with any agreement or arrangement otherwise reached between those 
Parties, the flag State may authorize the requesting State to, inter alia: 



Sohn 77 



(a) Board the vessel; 

(b) Search the vessel; 

(c) If evidence of involvement in illicit traffic is found, take appropriate action with 
respect to the vessel, persons and cargo on board. 

5. Where action is taken pursuant to this article, the Parties concerned shall take due 
account of the need not to endanger the safety of life at sea, the security of the vessel 
and the cargo or to prejudice the commercial and legal interests of the flag State or 
any other interested State. 

6. The flag State may, consistent with its obligations in paragraph 1 of this article, 
subject its authorization to conditions to be mutually agreed between it and the 
requesting Party, including conditions relating to responsibility. 

7. For the purposes of paragraphs 3 and 4 of this article, a Party shall respond 
expeditiously to a request from another Party to determine whether a vessel that is 
flying its flag is entitled to do so, and to requests for authorization made pursuant to 
paragraph 3. At the time of becoming a Party to this Convention, each Party shall 
designate an authority or, when necessary, authorities to receive and respond to such 
requests. Such designation shall be notified through the Secretary-General to all other 
Parties within one month of the designation. 

8. A Party which has taken action in accordance with this article shall promptly inform 
the flag State concerned of the results of that action. 

9. The Parties shall consider entering into bilateral or regional agreements or 
arrangements to carry out, or to enhance the effectiveness of, the provisions of this 
article. 

10. Action pursuant to paragraph 4 of this article shall be carried out only by warships 
or military aircraft, or other ships or aircraft clearly marked and identifiable as being 
on government service and authorized to that effect. 

11. Any action taken in accordance with this article shall take due account of the need 
not to interfere with or affect the rights and obligations and the exercise of jurisdiction 
of coastal States in accordance with the international law of the sea. 

The next text is an amalgamation of the previous drafts, using some 
language of both the 1986 Secretariat text and that of the earlier Review 
Group, which the Commission on Narcotic Drugs forwarded to the 
Conference, 175 with certain changes and several additions. In particular, two 
references were added to the "international law of the sea/' it being generally 
understood, and expressly stated by the United States delegation, that these 
references relate to international customary law, as reflected in the 1982 
United Nations Convention on the Law of the Sea. Thus paragraph 1 follows 
clearly Article 108(1) of that Convention, and paragraph 2 is based on its 
Article 108(2), and, following recent practice, expands the right to request 
assistance to include the case of illicit traffic by stateless vessels. It is also 
necessary to note that new paragraph 11 requires that any interdiction action 
"shall take due account of the need not to interfere with or affect the rights 
and obligations of the coastal States in accordance with international law," 



78 Law of Naval Operations 

which have been considerably broadened by the 1982 Convention. The United 
States delegation made clear, however, during the negotiations that this 
paragraph refers only to those situations in which a coastal state has generally 
recognized rights beyond the outer limit of the territorial sea, as in the case 
of hot pursuit in the exclusive economic zone and on the high seas, and the 
right to take action in the contiguous zone for the limited purposes recognized 
in Article 33 of the LOS Convention. 

Paragraphs 3-6 expand considerably the text contained in earlier drafts and 
define more clearly the respective rights of the flag state and of the state 
wishing to search a foreign ship. A state having reasonable grounds to suspect 
that a vessel flying the flag of another state is engaged in illicit drug traffic 
may take three steps: (a) notify the flag state so that this state itself may take 
the necessary action; (b) request confirmation of registry; and (c) if registry 
is confirmed, request authorization from the flag state to "take appropriate 
measures in regard to that vessel." It is thus made clear that, once it is 
confirmed that the vessel is actually entitled to fly the flag of another state, 
no action can be taken against the vessel without express authorization of 
the flag state. 

The authorization can be made directly "pursuant to this article" of the 
1988 Convention, and in such case no additional agreement or arrangement 
is required. The Convention encourages the parties, however, to enter into 
bilateral or regional agreements or arrangements to carry out the provisions 
of this article (paragraph 9); and the United States has already started to 
conclude such agreements. 176 It is not clear what is meant by "arrangements;" 
it probably means exchanges of notes or other executive agreements not 
requiring ratification, but does not include informal ad hoc agreements reached 
by telephone at the time of a request for authorization. 

Whether or not there is an agreement or arrangement, the flag state has 
several choices. In the first place, it may authorize the requesting state only 
to board the vessel (e.g., to ascertain the registration); or it may authorize 
a search of the vessel; or, if that search finds evidence of involvement in illicit 
traffic, the flag state may authorize the requesting state to "take appropriate 
action with respect to the vessel, persons and cargo on board" (paragraph 
4). In the second place, the flag state may, consistent with its obligation to 
"cooperate to the fullest extent" (paragraph 1), "subject its authorization 
to conditions to be mutually agreed" by the two states concerned. If the 
requesting state is not able or willing to comply with those conditions, the 
authorization can be denied. One of the conditions may be that the requesting 
state should agree to be responsible for any damage caused by its action against 
the vessel (paragraph 6). This may be onerous, as the Convention also provides 
that in any action to be taken under this article, the requesting state must 
"take due account of the need not to endanger the safety of life at sea, the 
security of the vessel and the cargo." More broadly, it shall not "prejudice 



Sohn 79 

the commercial and legal interests of the flag State or any other interested 
State'* (paragraph 5). 

Paragraphs 7 and 8 reflect the prior drafts, with only minor changes. 
Paragraphs 9 and 11 have already been discussed above. In accordance with 
the new paragraph 10, action under this Article can be taken only by "warships 
or military aircraft, or other ships or aircraft clearly marked and identifiable 
as being on government service and authorized to that effect." This provision 
reflects several articles of the 1982 LOS Convention. 177 

By thus codifying the rules on interdiction of foreign vessels, the 
Conference took an important step which would bring the campaign against 
illicit drugs to a point beyond that ever reached by the crusade against slave 
trade. Whether this step will endanger the freedom of the high seas will 
depend on the interpretation of the provisions relating to the obligation 
requiring the prior consent of the flag state, not merely in a particular case, 
under pressure of the circumstances, but through a properly ratified, bilateral 
or multilateral agreement, containing proper safeguards against abuse. 178 In 
the 1920s it proved possible for the United States to conclude sixteen such 
agreements in order to combat liquor traffic. 179 Perhaps it may be possible 
to conclude agreements similar to the one made with the United Kingdom 
in 1981 , 180 which would permit the United States — in the words of paragraph 
9 of Article 17 of the Convention — "to carry out, or to enhance the 
effectiveness of, the provision of [that] article." Only that kind of action 
would maintain the integrity of Article 110 of the Convention on the Law 
of the Sea, and would protect the United States and its Navy against the 
disintegration of the concept of the freedom of the high seas, on which the 
security of the United States depends. 181 

Notes 

*Woodruff Professor of International Law, School of Law, University of Georgia. 

1 . As Professors McDougal and Burke have pointed out, the story of the attempts to broaden the 
right to visit and search slave-trading vessels "possesses current interest as testimony of the traditional 
aversion of interference by foreign warships with national vessels on the high seas." Myres S. McDougal 
and William T. Burke, The Public Order of the Oceans (New Haven and London: Yale University Press, 
1962), p. 881. 

2. This comment will not consider such issues as the extent of a coastal state's jurisdiction in a 
contiguous zone, right of hot pursuit from coastal waters into the high seas, jurisdiction over activities 
on the continental shelf and in the exclusive economic zone, the protection of certain living resources 
of the high seas, or the exploration of the mineral resources of the seabed area beyond the limits of national 
jurisdiction. For an early collection of treaties, laws and regulations dealing with some of the issues 
mentioned in this footnote, which was prepared by this author for the International Law Commission, 
see United Nations Legislative Series, v. 1, Laws and Regulations on the Regime of the High Seas, U.N. Doc. 
ST/LEG/SER.B/1 (1951), U.N. Publ. Sales No. 1951.V.2. 

3. See the I'm Alone case, where the United States was ordered to pay $25,000 in punitive damages 
for the intentional sinking by a United States Coast Guard vessel of a British ship of Canadian registry 
suspected of smuggling alcoholic beverages. Report by a Joint Commission, January 5, 1935, United 
Nations, Reports of International Arbitral Awards, v. 3, pp. 1609, 1617-18. 

For punishment of British commanders for illegal captures of slave ships, see infra note 21. See also 
the treaty of 1862, infra, note 31, Article 7, and the text preceding that note. 



80 Law of Naval Operations 

The Treaty of Amity and Commerce with Prussia, September 10, 1785, provided in Article XV that 
even in time of war between one party and a third power, if a vessel of war of the belligerent party 
should encounter the vessel of the neutral party on the high seas, it would not be permitted to approach 
the neutral vessel within a cannon-shot, nor send more than two or three men in their boat on board 
that vessel, to examine her sea-letters or passports (i.e., documents proving their neutral nationality); 
and should the persons belonging to the war vessel "molest or injure in any manner whatever the people, 
vessels, or effect of the other part," they would be "responsible in their persons and property for damages 
and interest." As at that time, the United States Navy had to rely for assistance on privateers, there was 
the additional provision that "all commanders of private owned vessels" must give sufficient security 
for such damages "before they are commissioned." William M. Malloy, Treaties, Conventions, etc., between 
the United States of America and Other Powers, 1776-1909 (Washington, D.C.: Government Printing Office, 
1910), v. 2, pp. 1477, 1482. 

For a spirited defense of the United States' need for privateers, see the statement of U.S. Minister at 
London, Mr. James Buchanan (later President of the United States), March 24, 1854, reprinted in John 
Basset Moore, A Digest of International Law (Washington D.C.: Government Printing Office, 1906), v. 7, 
p. 550. In 1856, the United States Government announced its willingness to adhere to the Declaration 
of Paris abolishing privateering, provided that at the same time the other powers would agree that "the 
private property of subjects and citizens of a belligerent on the high seas shall be exempt from seizure 
by the public armed vessels of the other belligerent, except it be contraband," thus evening the odds 
between Great Britain, then the biggest naval power, and the United States, then having the biggest 
merchant marine (easily changeable to privateering). See id., pp. 563-65. See also the statement by Secretary 
of State Marcy, July 28, 1856, id., pp. 552-54. 

4. Le Louis, 2 Dodson 210, 243-44 (High Court of Admiralty, 1817); reprinted in James Brown Scott, 
ed., Cases on International Law (St. Paul: West Publishing Co., 1905), pp. 352, 356-357 (1905). 

In a similar spirit, Justice Story stated that: 

Upon the ocean, then, in time of peace, all possess an entire equality. It is the common highway 
of all, appropriated to the use of all; and no one can vindicate to himself a superior or exclusive 
prerogative there. Every ship sails there with the unquestionable right of pursuing her own lawful 
business without interruption; but, whatever may be that business, she is bound to pursue it in 
such a manner as not to violate the rights of others. The general maxim in such cases is, sic utere 
tuo, ut non alienum laedas. 

The Marianna Flora, 24 U.S. (11 Wheaton) 1, 42 (1826). 

5. U.N. Secretariat, Memorandum on the Regime of the High Seas, U.N. Doc. A/CN.4/32 (1950), p. 4 
(prepared by Professor Gilbert Gidel). 

6. [First] United Nations Conference on the Law of the Sea, Official Records, v. 4 (Second Committee: 
High Seas; General Regime), U.N. Doc. A/CONF.13/40 (1958), U.N. Publ. Sales No. 58.V.4, Vol. 4, 
p. 15 (hereafter cited as 1958 LOS Conference). Admiral Colclaugh emphasized that the principle of the 
freedom of the seas had two vital elements: first, that the high seas were open to all nations; and second, 
that certain restraints and regulations were necessary to safeguard the exercise of the freedom in the 
interests of the whole international community." Id. 

7. See Moore, supra note 3, pp. 987-1001; and Green H. Hackworth, Digest of International Law 
(Washington, D.C.: U.S. Government Printing Office, 1941), v. 2, p. 659. 

In the Trent incident in 1861, a United States warship removed Confederate commissioners from a British 
mail steamer. When' they were later released to the British ambassador, Secretary of State Seward 
explained that United States action was inconsistent with the principles espoused by the United States 
in the impressment of seamen case. He quoted from an 1804 statement of James Monroe, then Secretary 
of State in the Jefferson Administration, that leaving the decision about the future of an individual to 
a naval officer rather than a tribunal would be contrary to "[rjeason, justice and humanity." Moore, 
supra, note 3, v. 7, pp. 626-29. See also id., pp. 768-79. 

8. Reproduced in Moore, supra note 3, v. 2. p. 998. 

9. Id., at p. 999. 

10. Act for the Abolition of Slave Trade, March 25, 1807, British Statutes, v. 21, 47 George HI, 1st 
session, ch. 36. 

11. Act to Prohibit the Importation of Slaves into any Port or Place Within the Jurisdiction of the 
United States, March 2, 1807, U.S. Statutes at Large, v. 2, p. 426. 

12. See The Amedie, 1 Action 240 (Lords Commissioners of Appeal, 1810), and The Fortuna, 1 Dodson 
81 (High Court of Admiralty, Sir William Scott, 1811), digested in Moore, supra note 3, v. 2, pp. 914- 
16. For a criticism of these cases, see William Beach Lawrence, Visitation and Search (Boston: Little, Brown 



Sohn 81 

and Company, 1858) p. 18 (an excellent brief for freedom of vessels from visit and search by foreign 
warships). 

13. Le Louis, supra note 4, pp. 240, 253-58. This decision was followed closely by Chief Justice Marshall 
in The Antelope, 23 U.S. (10 Wheaton) 66, 118-23 (1825). His main conclusion was: 

No principle of general law is more universally acknowledged, than the perfect equality of 
nations. Russia and Geneva have equal rights. It results from this equality, that no one can rightfully 
impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone. 
A right, then, which is vested in all, by the consent of all, can be divested only by consent; and 
this trade, in which all have participated, must remain lawful to those who cannot be induced 
to relinquish it. As no nation can prescribe a rule for others, none can make a law of nations; 
and this traffic remains lawful to those whose governments have not forbidden it. If it be consistent 
with the law of nations, it cannot in itself be piracy. It can be made so only by statute; and the 
obligation of the statute cannot transcend the legislative power of the state which may enact it. 

If it be neither repugnant to the law of nations, nor piracy, it is almost superfluous to say, in 
this court, that the right of bringing in for adjudication, in time of peace even where the vessel 
belongs to a nation which has prohibited the trade, cannot exist. The courts of no country execute 
the penal laws of another; and the course of the American government, on the subject of visitation 
and search, would decide any case in which that right had been exercised by an American cruiser, 
on the vessel of a foreign nation, not violating our municipal laws, against the captors. It follows, 
that a foreign vessel engaged in the African slave-trade, captured on the high seas, in time of peace, 
by an American cruiser, and brought in for adjudication, would be restored. [Id., p. 120.] 

14. Letter to British Minister at Washington, August 15, 1821, reproduced in Moore, supra note 3, 
v. 2, p. 919. When John Quincy Adams was Ambassador to Great Britain, he was asked whether there 
could be a worse evil than the slave trade. He replied tartly that it would be a much worse evil if the 
United States Government should allow any vessel flying the Stars and Stripes to be stopped and examined 
by a British cruiser, for that would be to make slaves of the whole American people. Quoted from W. 
E. F. Ward, The Royal Navy and the Slavers: The Suppression of the Atlantic Slave Trade (New York: Schocken, 
1970), p. 161. For a slightly different version of this statement, see Hugh G. Soulsby, The Right of Search 
and the Slave Trade in Anglo-American Relations, 1814-1862 (Baltimore: Johns Hopkins Press, 1933), p. 18, 
published in 51 Johns Hopkins University, Studies in Historical and Political Science (1933), No. 2, p. 
18. 

15. Letter from Mr. Adams to Mr. Canning, June 24, 1823, American State Papers, Foreign Relations, Second 
Series, v. 5 (1858) pp. 330, 331-32. The text of the draft convention prepared by Mr. Adams may be found 
in id., pp. 335-37. 

16. Act to Punish the Crime of Piracy, May 15, 1820, U.S. Statutes at Large, v. 3, p. 600; Act for 
a More Effectual Suppression of the African Slave Trade, March 31, 1824, British Statutes, v. 27, 5 George 
IV, ch. 17, reprinted in American State Papers, supra note 15, v. 5, p. 342. 

17. U.S. Congress, Resolution on Slave Trade, 1823, Annals of Congress, 17th Congress, 2d session, pp. 
928, 1147-55. 

18. British and Foreign State Papers, v. 12, 1824-25, p. 838, Articles V and X. 

19. See Moore, supra note 3, v. 2, pp. 924-26. 

20. This clause, which is the source of the modern clause authorizing the boarding of stateless vessels 
(see infra, text preceding note 89), was suggested to the British Foreign Secretary, Lord Palmerston, by 
Lord Minto, First Lord of Admiralty, who pointed out the practice of slave traders, when threatened 
with capture, to dispense completely with flag and papers. As the jurisdiction of courts over slave trade 
offenses was based either on the trader's British nationality or on a treaty with his flag state, the courts 
have held that "[i]f a ship's nationality could not be established with any certainty, neither a mixed court 
nor a national court had jurisdiction over it, and it could not be condemned." On the other hand, such 
a ship could not claim the protection of any government, and a British law could empower British cruisers 
to search and capture slave ships not entitled to the protection of any state, and to take them before British 
admiralty courts. See Leslie M. Bethell, "Britain, Portugal and the Suppression of the Brazilian Slave 
Trade: The Origins of Lord Palmerston 's Act of 1839," English Historical Review, v. 80 (1965), pp. 761, 
777. 

21. For the text of the act, see 2 & 3 Vict., ch. 73. For its discussion, see William Law Mathieson, 
Great Britain and the Slave Trade, 1839-1865 (London, 1929: reprinted by Octagon Books: New York, 1967), 
p. 23. Mathieson also points out that to escape the British warships, the slave ships progressed from the 
French flag to the Spanish one, then to the Portuguese flag, and finally to the American one, "ending 



82 Law of Naval Operations 

naturally and inevitably with the only Power which had refused to concede the right of search." Id., 
p. 25. 

The provision abolishing the jurisdiction of courts to award damages in cases of captures of vessels 
which were not based on a treaty with the flag state was necessary as British courts considered such 
captures illegal and imposed on the commanders of warships responsible for such captures the obligation 
to pay heavy compensation for all damages and losses. See, e.g., the case of the Gaviao, Ward, supra note 
14, pp. 84-86; and the cases cited in Soulsby, supra note 14, pp. 73-75. But see Buron v. Denman, id., pp. 
186-87, discussed in Christopher Lloyd, The Navy and the Slave Trade (London: Frank Cass, 1949, reprinted 
1968), pp. 97-99; Mathieson, supra, pp. 92-93 (citing Exchequer Reports, (1848), v. 2, p. 167) (decided for 
Denman "because his proceedings, though contrary to the law of nations as laid down by Sir William 
Scott in the [Le Louis] case, had been endorsed by the British Government"). 

22. See Bethell, supra note 20, pp. 778-79 

23. See id., pp. 780-81. A similar crisis arose in 1845, when the 1826 Brazilian-British treaty for the 
suppression of slave trade expired and Brazil notified the British Government that the British cruisers 
had lost, therefore, their right to visit and search Brazilian ships. The British response was contained 
in the so-called "Lord Aberdeen's Act," British Statutes, v. 35, 8-9 Vict., ch. 122, of August 8, 1845, 
which relied on the provision of the 1826 treaty which condemned slave trade as piracy, and on that basis 
applied to Brazil provisions similar to those enacted in 1839 against Portugal (supra, note 21), allowing 
search and capture, and empowering British admiralty courts to condemn the vessels found guilty of slave 
trade, etc. For the history of the 1845 Act, see Wilbur Devereux Jones, "The Origins and Passage of 
Lord Aberdeen's Act," Hispanic American Historical Review, v. 42 (1962), pp. 502, 512-20. 

24. Ward, supra note 14, p. 140. 

25. Soulsby, supra note 14, pp. 58-59. See also id., pp. 56-57, for an earlier United States note on this 
subject, and id., pp. 60-61, for an elaborate reply by Lord Palmerston. The dispute did not stop there; 
for further correspondence on the subject, see id., pp. 61-72. The British Government has, however, 
indemnified the United States for unjustified seizures, though sometimes after long delays, id., pp. 73- 
76. 

26. Treaty to settle and define the boundaries between the territories of the United States and the 
possessions of Her Britannic Majesty in North America, for the final suppression of the African slave 
trade, etc., August 9, 1842, Articles VIII and IX, 8 Statutes at Large 572, U.S. Treaty Series 119, 12 Bevans 
82. 

27. Concerning the drafting of the treaty, the acrimonious debate in Congress, and the difficulties 
that arose as to its interpretation, see Soulsby, supra note 14, pp. 78-106. See also Moore, supra note 3, v. 
2, pp. 930-41. 

28. See Lloyd, supra note 21, p. 41. 

29. Note on April 10, 1858, reprinted, in part, in Moore, supra note 3, v. 2, pp. 942-43. 

30. See Mathieson, supra note 21, p. 156. See also Moore, supra note 3, v. 2, pp. 941-45; Soulsby, supra 
note 14, pp. 139-66. Seizures of American flag vessels did not cease, however, and a new controversy 
arose with respect to the right of a warship to compel a merchant vessel to display its flag, as some masters 
of American vessels manifested a disinclination to hoist a flag when asked by a British warship. This problem 
was finally solved by the issuance of instructions that captains in the merchant service should "display 
their colors as promptly as possible, whenever they meet upon the ocean an armed cruiser of any nation." 
See Soulsby, supra, pp. 166-72. 

31. Treaty for the Suppression of African Slave Trade, April 7, 1862, as amended on February 17, 
1863, U.S. Statutes at Large, v. 12, p. 1225; v. 13, p. 645; Malloy, supra note 3, v. 1, pp. 674, 687. 

Annex B to the treaty (id., pp. 681-87) contained detailed Regulations for the Mixed Courts of Justice, 
which provided, for instance, in Article IV that in case of a disagreement between the two judges "they 
should draw by lot the name of one of the two arbitrators," who shall consult with the two judges, the 
final decision being rendered by the majority of the three. 

32. See W. E. B. DuBois, The Suppression of the African Slave-Trade to the United States of America, 1638- 
1870 (1896, reprinted by Schoken Books: New York, 1969), pp. 287-88. This book contains also an excellent 
"chronological conspectus of state, national, and international legislation," with a summary of legislative 
history, and citation of sources for each item. Id., pp. 230-88. 

According to Moore, supra note 3, v. 2, p. 467, no vessels were known to have been condemned in 
the British-American Mixed Courts by 1868. See also Warren S. Howard, American Slavers and the Federal 
Law, 1837-1862 (Berkeley and Los Angeles: University of California Press, 1963), pp. 63-64. For a report 
from the United States members of the Mixed Court at Freetown, Sierra Leone, see the Message of the 
President of the United States on African slave trade, July 2, 1864, 38th Congress, 1st session, Senate Exec. 
Doc. No. 56, pp. 24-26 (containing recommendations, inter alia, for technical assistance in labor-saving 
devices to tribes willing to abandon slavery). An analysis of the work of all the Mixed Commissions and 



Sohn 83 

Courts may be found in Leslie M. Bethell, "The Mixed Commissions for the Suppression of the 
Transatlantic Slave Trade in the Nineteenth Century, "Journal of African History, v. 7 (1966), p. 79-93. 

33. Convention for the Suppression of Slave Trade, June 3, 1870, Malloy, supra note 3, v. 1, p. 693. 
Article 2 of the accompanying Instructions provided that any search authorized by the Convention "shall 
be conducted with the courtesy and consideration which ought to be observed between allied and friendly 
nations." 

34. See Suzanne Miers, Britain and the Ending of the Slave Trade (London: Longman, 1975), p. 16, no. 40 
and pp. 19-20, n. 61. 

35. Id., pp. 211-21. See also Christopher Lloyd, supra note 21, pp. 187-274. 

36. Miers, supra note 34, pp. 233-34, 238, 240. 

37. Id., p. 241. 

38. Id., pp. 241-42. 

39. 27 Statutes at Large 886; U.S. Treaty Series 383; 1 Bevans 134. Chapter I dealt with measures 
to be taken in the places of origin of the slave trade; chapter II with transportation of slaves by land; 
chapter III on trade by sea is discussed in the preceding text; chapter IV prohibited the importation of 
slaves by countries where domestic slavery still existed; chapter V provided for the establishment of an 
international information office in Zanzibar (with a supplementary, more limited office in Brussels), which 
was given the task to centralize all documents relating to the capture of vessels and their condemnation 
or release, and all information that might lead to the discovery of persons engaged in slave trade. 

40. See Miers, supra note 34, pp. 244-45. 

41. Id., p. 293. 

42. See, e.g., the Report of the Ad Hoc Committee on Slavery, U.N. Doc. E/1988 (1951), 13 ESCOR, 
Annexes Ag. Item 21, p. 1, para. 8-19; Benjamin Whitaker, Slavery: Report to the U.N. Sub- Commission on 
Prevention of Discrimination and Protection of Minorities, U.N. Doc E/CN.4/Sub. 2/1982/20/Rev. 1 (1984); U.N. 
Publ. Sales No. E.84.XIV.I (1984), pp. 10-20, especially 18-20. 

43. Convention on the Revision ... of the General Act ... of Brussels, St. Germain-en-Laye, 
September 10, 1919, Articles 11 and 13, 49 Stat. 3027; U.S. Treaty Series 877; 2 Bevans 261. See also Miers, 
supra note 34, pp. 309-14. In consequence of the 1919 Convention, the 1890 Brussels Act does not apply 
any longer as between the United States, Belgium, France, Germany, Italy, Portugal and the United 
Kingdom. 

44. See United Nations, The Suppression of Slavery (Memorandum submitted by the Secretary-General 
to the Ad Hoc Committee on Slavery of the Economic and Social Council), U.N. Doc. ST/SOA/4 (1951), 
U.N. Publ. Sales No. 1951.XIV.2), pp. 12-14, 16-19, See also Joyce A. Gutteridge, "Supplementary Slavery 
Convention, 1956," International Comparative Law Quarterly, v. 6, pp. 449, 454-56. For the text of the Anti- 
Slavery Convention, Geneva, September 25, 1926, see 46 Stat. 2183, U.S. Treaty Series 778, 2 Bevans 607, 
60 League of Nations Treaty Series 253. A protocol of December 7, 1953, transferred the functions of 
the League of Nations under the 1926 Convention to the United Nations, 7 UST 479; TIAS No. 3532; 
182 UNTS 57. 

For the text of the Convention on the Suppression of International Trade in Arms and Ammunition 
and in Implements of War, June 17, 1925, see Malloy, supra note 3, v. 4 (ed. by E. J. Trenwith, 1938), 
p. 4903; Manley O. Hudson, ed., International Legislation, v. 3 (Washington, D.C.: Carnegie Endowment 
for International Peace, 1931), p. 1634. The convention was ratified by the United States, but it did not 
enter into force, as it did not seem to have received the necessary 14 ratifications. See Hackworth, supra 
note 7, v. 2, p. 672. The relevant provisions of that convention were Articles 12, 20-24, and Annex II, 
section II (Maritime Supervision). 

45. See Gutteridge, supra note 44, p. 460. See, however, the exchange of notes accompanying the treaty 
of friendship and mutual co-operation of February 10, 1934, between the British Government and the 
Imam of Yemen, in which the Imam agreed to the prohibition of the African slave trade and commended 
his governors to do their utmost to prevent it in both the country and the ports. 157 LNTS 63, 73. 

46. U.N. Doc. E/1988 supra note 42, para. 27, and recommendation B.2. See also Gutteridge, supra 
note 44, 460. 

Slavery and slave trade have been considered by the United Nations as prohibited activities, as violations 
of basic human rights. The Universal Declaration of Human Rights, adopted by the General Assembly 
in 1948, provided that "[n]o one shall be held in slavery or servitude; slavery and slave trade shall be 
prohibited in all these forms." General Assembly Resolution 217 A (III), December 10, 1948, Article 4, 
3 GAOR, Part I, Resolutions, p. 71. An almost identical provision is contained in the International Covenant 
on Civil and Political Rights, adopted by General Assembly Resolution 2200 A (XXI), December 16, 1966, 
Article 8, 99 UNTS 171. (By December 31, 1987, this Covenant has been ratified or acceded to by 87 
states; the United States has signed this document but has not ratified it.) For a summary of action taken 
by the United Nations in the field of slavery, see Whitaker, supra note 42, pp. 27-30. 



84 Law of Naval Operations 

47. Letter from the Permanent Representative of the United Kingdom to the Secretary-General of 
the United Nations, U.N. Doc. E/2540/Add.4 (1954); 17 ESCOR, Annexes, Ag. Item 15, p. 9, Annex 
(Draft Convention), Article 2. For comments on that document, see U.N. Docs. E/AC.43/L.1 (1955) and 
Adds. 1 and 2 (1956). 

48. U.N. Doc. E/2824 (1956), 21 ESCOR, Annexes, Agenda Item 12, p. 1, paras. 97-139, and Annex 
I (Draft Convention), Article 3; Gutteridge, supra note 44, p. 466. 

49. Gutteridge, supra note 44, pp. 466-69; U.N. Secretariat, Memorandum on the Relation between 
the Articles concerning the Law of the Sea Adopted by the International Law Commission and International 
Agreements Dealing with the Suppression of the Slave Trade, U.N. Doc. A/CONF.13/7 (1957), paras. 
17-25, reprinted in 1958 LOS Conference supra note 6, v. I, pp. 165-68. 

50. Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and 
Practices Similar to Slavery, Geneva, September 7, 1956, Articles 3 and 4, 18 U.S.T 3201, T.I.A.S 6418, 
266 U.N.T.S 3. 

51. U.N. Doc. A/CN.4/17 (1950), p. 12. 

52. U.N. Doc. A/CN.4/42 (1951), p. 22. Professor Francois relied on a statement by Justice Story that 
a warship seizes a foreign vessel at its peril and, if unjustified, "must make full compensation. " The Marianna 
Flora, supra note 4, p. 42 (1826). 

53. See supra notes 42 and 46. 

54. See supra text preceding note 40. 

55. U.N. Doc. A/CN.4/42, supra note 52, pp. 23-29. 

56. See supra note 46. 

57. See Yearbook of the International Law Commission, 1951, v. 1, pp. 350-54, especially 123rd meeting, 
paras. 91, 109-10, 124, 127-28, 132. 

58. Report of the International Law Commission, 6 U.N. GAOR, Suppl. No. 9, U.N. Doc. A/1858 
(1951) p. 16, reprinted in Yearbook, supra note 57, v. 2, pp. 139-40. 

59. U.N. Doc. A/CN.4/51 (1952), p. 9. 

60. Id., p. 11. 

61. Francois, Sixth Report, A/CN.4/79 (1954), pp. 23-27; International Law Commission, Seventh 
Session, Report, 10 GAOR, Suppl. No. 9, U.N. Doc. A/2934 (1955), pp. 6-8, reprinted in Yearbook, supra 
note 57, 1955, v. 2, pp. 24-27. Francois acknowledged that the piracy articles were a condensation of a 
more elaborate draft convention prepared by the Harvard Research in International Law in 1932, reprinted 
in the American Journal of International Law, v. 26 (1932), Suppl., pp. 739-885. See Yearbook, supra, 1955, v. 
l,p.39. 

62. Yearbook, supra note 57, 1955, v. 1, p. 20. 

63. Id., pp. 26-27. 

64. Id., pp. 28-29, 31-33. 

65. Id., pp. 29, 31. 

66. Proposal by Mr. Edmonds (Commission member from the United States), id., p. 32. See also statement 
by Mr. Garcia Amador, id., p. 29. 

67. Id., pp. 33-34. See also id., p. 229. 

68. See the Commission's 1955 report, 10 GAOR, Suppl. No. 9, U.N. Doc. A/2934 (1955), p. 8, reprinted 
in Yearbook, supra note 57, 1955, v. 2, p. 27. 

69. 1955 Report, supra note 68, Article 21, p. 8, reprinted in 1955 Yearbook, supra note 68, v. 2, pp. 
26-27; Commission's 1956 Report, 11 GAOR, Suppl. No. 9, U.N. Doc. A/3159 (1956), Article 46, pp. 
29-30, reprinted in Yearbook, supra note 57, 1956, v. 2, pp. 283-84. See also Francois Report, U.N. Doc. 
A/CN.4/97 and Adds. 1 to 3 (1956), reprinted in Yearbook, supra note 57, 1956, v. 2, p. 20. 

70. 1958 LOS Conference, supra note 6, v. IV, p. 21. The Tunisian delegate recalled a recent incident, 
when the Yugoslav merchant vessel Slouenija was stopped on the high seas and escorted to Oman where 
a part of its cargo was confiscated. See the Yugoslav complaint about this incident, id., pp. 8-9, where 
the Yugoslav delegate also noted that "no state was entitled to arrogate to itself, without the consent 
of the international community, any rights regarding the high seas except those laid down in rules adopted 
by joint agreement." 

71. Id., p. 31. For similar statements by the delegate of the Ukrainian S.S.R., see id., pp. 32 and 81- 
82. 

72. See id., p. 31. In support of such deletion, another delegate of the U.A.R. pointed out that proposals 
similar to the one suggested in 1958 had been heavily defeated at the three recent conferences dealing 
with slave trade which were mentioned by Mr. El Erian. Id., p. 80. 

73. Id., pp. 82-83. 

74. Id., p. 90. 

75. Id., p. 83. 



Sohn 85 

76. 1958 LOS Conference, supra note 6, v. 2 (Plenary Meetings), U.N. Doc. A/CONF.13/38 (1958), 
U.N. Publ. No. 58.V.4, Vol. 2, p. 22. 

77. Convention on the High Seas, April 29, 1958, 13 UST 2312, TIAS No. 5200, 450 UNTS 82. 

78. United Nations Convention on the Law of the Sea, December 10, 1982, reprinted in United Nations, 
The Law of the Sea, Official Text of the United Nations Convention on the Law of the Sea, U.N. Publ. Sales No. 
E.83.V.5. (Hereafter cited as the 1982 LOS Convention.) 

79. See the discussion on this point in the Second Committee of the 1958 LOS Conference, supra note 
6, v. 4, pp. 80, 90, 109, 149 (rejection of the Bulgarian proposal which would have granted immunity 
also to government vessels used for commercial purposes). 

80. Convention on the High Seas, supra note 77, Article 8, paragraph 2, and Article 22, paragraph 
1. Only Article 21, relating to piracy, allows seizure also by "military aircraft" and "other ships or aircraft 
on government service authorized to that effect." With respect to the applicability of that provision also 
to Article 22, see the rather ambiguous statements by the United Kingdom in the Second Committee of 
the First LOS Conference, summarized in 1958 LOS Conference, supra note 6, v. 4, pp. 108-9, and in the 
Plenary, id., v. 2, p. 22. 

81. See 1982 LOS Convention, supra note 78, Article 110, paras. 4 and 5, which parallel Article 107 
relating to ships and aircraft which were entitled to seize a foreign ship on account of piracy. On the 
one hand, it broadens its application to boarding of ships suspected of other illegal activities or flag misuse, 
and, on the other hand, it narrows it from seizure to boarding only. 

82. For U.S. acceptance of the navigation provisions of the 1982 Convention, see the Statement of 
the President on United States Ocean Policy, Weekly Compilation of Presidential Documents, v. 19, No. 10, 
pp. 383-85 (1983), reprinted in International Legal Materials, v. 22 (1983), p. 464. 

83. 1958 High Seas Convention, supra note 77, Article 22; 1982 LOS Convention, supra note 78, Article 
110, paragraph 1. 

84. Id., Article 110, subparagraphs (l)(c) and (d). 

85. Id., Article 109. 

86. European Agreement for the Prevention of Broadcasts Transmitted from Stations Outside of 
National Territories, January 22, 1965, 634 U.N.T.S. 239. For the proposal by a group of European countries 
to add a provision relating to unauthorized broadcasting from the high seas, see U.N. Doc. A/CONF.62/ 
C.2/L.54 (1954), reprinted in Third United Nations Conference on the Law of the Sea, Official Records 
(hereafter cited as the 1982 LOS Conference), v. 3, pp. 229-30, Article 21 ter. See also id., v. 2, p. 236, 
paragraph 59, and p. 292, paragraph 2; id., v. 3, p. 134 (main trends, Provision 177); id., v. 4, p. 166 (Informal 
Single Negotiating Text, Article 95 and Article 96, paragraph lc). 

The delegation of Israel made a proposal to delete Article 109, paragraph 3, relating to the right of 
various states to arrest and punish persons engaged in unauthorized broadcasting, to delete also Article 
110, paragraph 1(c) relating to boarding of ships engaged in that activity, and to allow instead the coastal 
state to exercise control over such broadcasting in the 24-mile contiguous zone. See id., v. 15, p. 20, 
paragraph 34; and Doc. C.2/Informal Meeting/38 (1978), reprinted in Renate Platzoder, Third United Nations 
Conference on the Law of the Sea: Documents (Dobbs Ferry, N.Y.: Oceana Publications, 1984), v. 5, p. 44. 
No action was taken on this proposal as by that time the text prepared by the Second Committee became 
practically immutable. 

87. See the text preceding footnote 20 supra. 

88. See 1958 LOS Conference, supra note 6, pp. 11-12 (para. 8). 

89. A United States court in United States v. Cortes, 588 F.2d 106, 110 (5th Cir. 1979), quotes Oppenheim's 
statement that it is "[i]n the interest of order on the open sea" that a stateless vessel enjoy no protection. 
L. Oppenheim, International Law (7th ed. H. Lauterpacht, London: Longmans, Green & Co., 1948), v. 1, 
p. 546. According to another author, statelessness "robs a ship of privileges, and deprives it of a State 
to espouse its cause when it suffers injustice at the hands of another State." Robert Reinow, Test of the 
Nationality of a Merchant Vessel (New York: Columbia University Press, 1937), p. 13. 

In Nairn Mohan v. Attorney-General of Palestine, [1948] A.C. 351, 369-70, the Judicial Committee of the 
Privy Council stated that "[n]o question of comity or breach of international law can arise if there is 
no State under whose flag the vessel sails. " It added that, having no flag, a vessel cannot claim the protection 
of any State, nor can "any State claim that any principle of international law was broken by her seizure." 

A stateless vessel can be stopped by any warship, because, as the United States courts view the situation, 
stateless vessels do not have the protection provided by a flag state. United States v. Dominguez, 604 F.2d 
304, 308 (4th Cir. 1979), cert, denied, 444 U.S. 1014 (1980). "International law shelters only members 
of the international community of nations from unlawful boarding and searches on the high seas." United 
States v. Cortes, supra at 110. 

It has to be remembered, however, that, as Mr. Francois has pointed out, a stateless vessel "should 
not be treated as a pirate unless it actually commits acts of piracy." U.N. Doc. A/CN.4/17, supra notes 
51, pp. 6-7. 



86 Law of Naval Operations 

90. The Congress of the United States has denied assistance to countries which engage in "a consistent 
pattern of gross violations of internationally recognized human rights," including a "flagrant denial of 
the right to life, liberty and the security of person." Foreign Assistance Act of 1961, as amended, 22 U.S.C. 
2151n. Clearly, any United States legislation should be interpreted also in the spirit of these 
pronouncements, thus avoiding any gross violation of internationally recognized human rights, both 
substantive and procedural. See, e.g., Judge Faye, dissenting in United States v. Warren, 578 F.2d 1058, 1081- 
82 n. 2 (5th Cir. 1978), cert, denied, 446 U.S. 956 (1980) ("I see no reason why a possible drug importer 
on the high seas should have fewer rights when confronted by the Coast Guard than should a person 
on land near the Mexican border when confronted by an officer of the Border Patrol"). 

It may be also noted that there is a strong connection between human rights and international security. 
As President Reagan stated at Helsinki on May 27, 1988, "[t]here is no true international security without 
respect for human rights," and "[sjecurity and human rights must be advanced together, or cannot truly 
be secured at all." Weekly Compilation of Presidential Documents, v. 24 (1988), p. 677, at 678, 679. 

It seems however, that some United States courts do not recognize any individual rights in the drug 
interdiction cases beyond those guaranteed by the Fourth Amendment. Even this fundamental constitutional 
guarantee is diluted on the high seas. United States v. Williams, 617 F.2d 1063, 1082-84, 1089-90 (5th Cir. 
1980). But see the concurring opinion by Judge Roney, in which five other judges joined, Id., at 1093 
("Williams, as a United States citizen on a foreign ship, just as on foreign soil, does have constitutional 
rights against an unreasonable search and seizure by United States Government authorities"). 

For a more detailed discussion of the relationship between the arrest of foreign nationals on foreign 
ships and the international law of human rights, see Louis B. Sohn, "International Law of the Sea and 
Human Rights Issues," in Thomas A. Clingan, Jr., ed., The Law of the Sea: What Lies Ahead? (Honolulu, 
Hi.: University of Hawaii, 1988), pp. 51-71. 

91. See, for instance, the treaty of friendship, commerce and consular rights between the United States 
and Honduras, December 7, 1927, which provides in Article I that the "nationals of each High Contracting 
Party shall enjoy freedom of access to courts of justice of the other . . . for the defense of their rights," 
and "shall receive within the territories of the other . . . the most constant protection and security for 
their persons and property, and shall enjoy in this respect that degree of protection that is required by 
international law." 45 Statutes at Large 2618; Treaty Series No. 764, 8 Bevans 905; 87 LNTS 421. Similar 
provisions may be found also in the treaty of friendship, commerce and navigation between the United 
States and Liberia, August 8, 1938. 54 Statutes at Large 1739; Treaty Series No. 956; 9 Bevans 595; 201 
LNTS 163. According to the treaty of friendship, commerce and navigation between the United States 
and Japan, April 2, 1953, "[nationals of either Party within the territories of the other Party shall be 
free from unlawful molestations of every kind, and shall receive the most constant protection and security, 
in no case less than required by international law," and "shall be accorded national treatment and most- 
favored-nation treatment with respect to access to the courts of justice and to administrative tribunals 
and agencies within the territories of the other Party, in all degrees of jurisdiction, both in pursuit and 
in defense of their rights." Articles 2 and 4, 4 UST 2063, TIAS No. 2863, 206 UNTS 143. 

92. See Convention relating to the Status of Stateless Persons, September 28, 1954, 360 U.N.T.S. 130 
(in force with respect to more than thirty states, but not ratified by the United States). The Convention 
contains generally accepted standards on the subject. After all, stateless persons retain their status as human 
beings and should be treated as such. A state should accord such persons treatment at least as favorable 
as that accorded to its own nationals or to aliens generally; in the latter case the requirement of reciprocity 
should be waived. See id., Articles 3, 4, 7, 16. There is even a special provision for stateless seamen. Id., 
Article 11. 

93. High Seas Convention, supra, note 77, Article 6, paragraph 2, 1982 LOS Convention, supra, note 
78, Article 92, paragraph 2. 

94. The persons on board a ship assimilated to a stateless ship should be treated at least as well as 
stateless persons (supra, note 92), or in accordance with their national status (supra, note 91). 

95. Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958, 15 UST 1606, TIAS 
No. 5639, 516 UNTS 205. 

96. Yearbook of the International Law Commission, 1956, v. 2, p. 59; id., v. 1, p. 207. 

97. Id. 

98. 1956 Report of the Commission, supra note 69, p. 21; Yearbook of the Commission, 1956, v. 2, 
p. 275. 

99. U.N. Doc. A/CONF.13/C.1/L.53 (1958); reprinted in 1958 LOS Conference, supra note 6, v. Ill, 
(First Committee), p. 226. 

100. Id., p. 117, para. 43. 

101. Id., p. 116, para. 36. This issue was also raised by the representative of Norway who pointed out 
that if such a rule is going to be introduced, "it would not be natural to limit the new possibilities of 
action against ships involved in the traffic [in narcotic drugs] to foreign ships in the territorial sea." Id., 



Sohn 87 

p. 116, para. 40. The representative of Turkey tried again to broaden his proposal "to empower the coastal 
State to exercise its criminal jurisdiction even if the offense had been committed outside the territorial 
sea," but the proposal was not pressed to a vote, when the Drafting Committee opposed it. Id., p. 202, 
paras. 46-49. 

102. Id., p. 116, paras. 34, 39. 

103. II, paras. 40-41. 

104. This change was suggested early in the Conference, and was incorporated promptly in the 
negotiating text, with a minor amendment. See 1982 LOS Conference, Official Records, v. 3, p. 114; Id., 
v. 4, p. 156; Id., v. 5, p. 157. 

105. Id., v. 2, p. 237, para. 69. 

106. Id., v. 3, p. 133, Provision 174. 

107. Id., v. 4, p. 166. 

108. See Platzoder, supra note 86, v. 5, pp. 66-70. The suggestion relating to an addition in Article 110 
appeared earlier in 1975, in the anonymous "blue papers" of the Second Committee, suggesting changes 
in the "main trends papers." See Platzoder, supra, v. 4, p. 137 (Provision 174B, para 1(c)) and 145 (same 
provision, with a note that consultations with respect to this matter have not been completed). 

109. This procedure was suggested by Sir William Scott in 1817 (see supra, text preceding note 13), 
and was followed by Great Britain throughout the nineteenth century. See, however, the objections to 
this approach by the United States, supra, text preceding notes 14 and 16. 

110. See Convention Relating to the Suppression of the Abuse of Opium and other Drugs, January 23, 
1912, 38 Statutes at Large 1912, Treaty Series No. 612, 1 Bevans 855; Agreement Concerning the Suppression 
of the Manufacture of, International Trade in, and Use of, Prepared Opium, February 11, 1925, 51 League 
of Nations Treaty Series, p. 337, Hudson, International Legislation, supra note 44, v. 3 (1931), p. 1580; Convention 
on Traffic in Opium and Drugs, February 19, 1925, 81 League of Nations Treaty Series, p. 317, Hudson, 
supra p. 1589; Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs, 
July 13, 1931, 48 Statutes at Large 1543, U.S. Treaty Series No. 863, 139 League of Nations Treaty Series, 
p. 301; Agreement Concerning the Suppression of Opium Smoking, November 27, 1931, 177 League of 
Nations Treaty Series, p. 373, Hudson, supra, v. 5 (1936), p. 1149; Convention for the Suppression of the 
Illicit Traffic in Dangerous Drugs, June 26, 1936, 12 U.N.T.S. 208, Hudson, supra v. 7 (1941), p. 359; Protocol 
of December 11 , 1946, amending the Agreements, Conventions, and Protocols on Narcotic Drugs of January 
23, 1912, February 11, 1925, February 19, 1925, July 13, 1931, November 27, 1931, June 26, 1936, 61 Statutes 
at Large 2230, T.I.A.S. No. 1671, 4 Bevans 267, 12 U.N.T.S. 179; Protocol of November 19, 1948, Bringing 
under International Control Drugs outside the Scope of the Convention of July 13, 1931, as amended, 
2 U.S.T. 1629, T.I.A.S. No. 2308, 44 U.N.T.S. 277; Protocol for Limiting and Regulating the Cultivation 
of the Poppy Plant, the Production of, International and Wholesale Trade in, and Use of Opium, June 
23, 1953, 14 U.S.T. 10, T.I.A.S. No. 5273, 456 U.N.T.S. 3. 

111. Single Convention on Narcotic Drugs, March 30, 1961, 18 U.S.T. 1407, T.I.A.S. No. 6298, 520 
U.N.T.S. 204. For the amended text of the Convention, see 976 U.N.T.S. 105. 

112. Protocol of March 25, 1972, Amending the Single Convention on Narcotic Drugs, 26 U.S.T. 1439, 
T.I.A.S. No. 8118, 976 U.S.T.S. 3. 

113. Single Convention on Narcotic Drugs, supra note 111, Article 35. 

114. Id., Article 36. 

115. Protocol Amending the Single Convention, supra note 112, Article 14. 

116. See Convention on Psychotropic Substances, February 21, 1971, 32 U.S.T. 543, 564-66, T.I.A.S. 
No. 9725, 1019 U.N.T.S. 175, 191-92. 

117. See, e.g., the 1972 statement by John E. Ingersoll, Director of the Bureau of Narcotics and Dangerous 
Drugs, U.S. Department of Commerce, who pointed out at a Congressional hearing that the international 
narcotics traffic "is a production and merchandising system based on the slavish demands of addicted 
individuals," whose demand is constant and whose purchasing power, "whether earned through wages 
or in crime, is considerable." Protocol Amending the Single Convention on Narcotic Drugs: Hearing 
before the Senate Committee on Foreign Relations, 92nd Congress, 2nd Session, p. 2 (1972). 

118. U.S. Note to the British Embassy, November 21, 1980, published in Department of State, Digest 
of United States Practice in International Law, 1980, pp. 484-85. (Cited hereafter as U.S. Digest). For a list 
of cases upholding such arrangement with foreign governments, see id., p. 486; see also the memorandum 
from the Office of the Legal Counsel of the Department of Justice to the Department of State, February 
19, 1980, id., pp. 475-84. 

119. Agreement to facilitate the interdiction by the United States of vessels of the United Kingdom 
suspected of trafficking in drugs, November 13, 1981, TI AS 10296. It was an exchange of notes, not requiring 
advice and consent of the Senate, which was probably based on the general authorization by Congress 
permitting the President "to conclude agreements with other countries to facilitate control of 
the . . . transportation and distribution of . . . controlled substances." 22 U.S.C. 2291(a)(2) (enacted by 



88 Law of Naval Operations 

the Foreign Assistance Act of 1971, sec. 109). See also the Justice Department memorandum, supra note 
118, pp. 476-77, which relies on this provision and on the general international co-operation article (Article 
35) of the 1961 Single Convention on Narcotic Drugs, supra notes 111 and 113. 

120. Convention for the Prevention of Smuggling of Intoxicating Liquors, January 23, 1924. 43 Statutes 
at Large 1761, U.S. Treaty Series No. 685, 12 Bevans 414, 27 League of Nations Treaty Series 182. 

121. See Charles Cheney Hyde, International Law Chiefly as Interpreted and Applied by the United States (Boston: 
Little, Brown and Company, 1945), v. 2, pp. 1179-80. 

122. According to Morris Busby, Office of Ocean Affairs, U.S. Department of State, the United States 
should not take the initiative to define the means of boarding foreign vessels on the high seas, but should 
continue to request permission on a case-by-case basis. Coast Guard Drug Law Enforcement: Hearings 
before the Subcommittee on Coast Guard and Navigation of the House Committee on Merchant Marine 
and Fisheries, 96th Congress, 1st session, p. 55 (1979). 

123. The United States courts have held that the failure of the flag State to object is equivalent to 
consenting to the seizure after the fact. The Court in United States v. Hensel, 699 F.2d 18, 28 (1st Cir.), 
cert, denied, 461 U.S. 958 (1983), decided that "[g]iven the need for speedy action, the hostility shown by 
all nations including Honduras to the international drug trade, and the fact that Honduras apparently 
did not protest the seizure, Honduras may arguably be said to have ratified the search." The Court cited 
United States v. Dominquez, 604 F.2d 304, 308 (4th Cir. 1979), cert, denied 444 U.S. 1014 (1980), for support 
of this statement; in Dominguez, the Bahamas government consented to the search of a ship on the basis 
of a registration number that proved to be wrong, but did not protest when a vessel with a different 
number was searched instead. 

124. See supra texts preceding and following note 78. 

125. U.N. Doc. E/CN.7/1983/2/Add. 1 (1982), p. 3, para. 4(a). 

126. Id., p. 12, paras. 39-40. 

127. Commission on Narcotic Drugs, Report on the 30th Session, ESCOR, 1983, Suppl. No. 5 (E/1983/ 
15), pp. 3, 20 (para. 77). 

128. U.N. Doc. E/RES/1983/4. The Economic and Social Council, inter alia, noted that "illicit drug 
traffickers also engage in fraudulent practices with respect to the flag State registration of these vessels," 
and that "registry information must be readily accessible to and verifiable by law enforcement personnel 
aboard the vessel and within the claimed flag State." It requested Governments "to explore methods of 
strengthening international co-operation in combating illicit maritime drug trafficking, and to respond 
promptly to enquiries made for law enforcement purposes by other States regarding the registry of vessels. " 
Id. 

129. Law of the Sea: Report of the Secretary-General, U.N. Doc. A/39/647 (1984), p. 15, para. 49. 
When a later draft included the United States-United Kingdom formula applying the "illicit traffic 

by sea" provision to the area "beyond the external limits of the territorial sea," one representative objected 
to it, as implying that "third States had been attributed certain rights in the area between 12 and 200 
miles (Exclusive Economic Zone) not contemplated in the United Nations Convention on the Law of 
the Sea." He expressed preference for an earlier formula applying to ships "on the high seas as defined 
in Part VII" of that Convention. Commission on Narcotic Drugs, Report of the Tenth Special Session, 
ESOR, 1988, Suppl. No. 3 (E/1988/13), p. 24 para. 28. 

130. See supra note 119 and the text that follows it. 

131. U.N. Docs. A/39/407 (1984) and A/C.3/39/8 (1984). 

132. General Assembly Resolution 39/141, December 14, 1984, 39 GAOR, Suppl. No. 51 (A/39/51), 
p. 229. For the report of the Third Committee of the General Assembly on the preparation of this resolution, 
see U.N. Doc. A/39/710 (1984), paras. 7-9, 16. 

133. 39 GAOR, Suppl. No. 51, supra note 132, pp. 229-31, Annex, Articles 2, 6 and 9. 

134. General Assembly Resolution 39/142, December 14, 1984, id., p. 231. Even more strongly, in a 
later resolution on the preparation of the draft convention against illicit traffic in narcotic drugs and 
psychotropic substances, the General Assembly condemned "unequivocally drug trafficking in all its illicit 
forms — production, processing, marketing and consumption — as a criminal activity," and requested "all 
States to pledge their political will in a concerted and universal struggle to achieve its complete and final 
elimination." General Assembly Resolution 41/127, December 4, 1986, 41 GAOR, Suppl. No. 53 (A/41/ 
53), pp. 184, 185, para. 1. 

135. U.N. Doc. A/C.3/39/SR.42 (1984), para. 37. According to an Australian delegate, drug trafficking 
was not of the same nature as the crimes against humanity listed by the International Law Commission 
in its draft Code of Offenses against the Peace and Security of Mankind; he considered that "[cjaution 
was necessary before a new offence was branded as a crime against humanity without proper consideration 
by competent legal bodies." U.N. Doc. A/C.3/39/SR.44 (1984), para. 6. A similar view was expressed 
by the delegate of Nigeria, who cited in support the latest report of the International Law Commission 



Sohn 89 

(U.N. Doc. A/39/10 (1984) para. 45), which did not include drug trafficking among the crimes against 
humanity. U.N. Doc. A/C.3/39/SR.53 (1984), para. 4. 

136. U.N. Doc. A/C.3/39/SR.43) (1984), para. 23. 

137. Commission on Narcotic Drugs, Report on the 31st Session, ESCOR, 1985, Suppl. No. 3 (E/1985/ 
23), pp. 14-16. 

138. Comments and Proposals Received from Governments Concerning a Draft Convention on Illicit 
Traffic in Narcotic Drugs and Psychotropic Substances: Report of the Secretary-General, U.N. Doc. E/ 
CN.7/1986/2 (1985), pp. 21-22. 

139. Commission on Narcotic Drugs, Report on the Ninth Special Session, ESCOR, 1986, Suppl. No. 
3 (E/1986/23), p. 8. 

140. Id., pp. 9, 26 (para. 3(j)). 

141. Preparation of a Draft Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances: Report of the Secretary-General, U.N. Doc. E/CN.7/1987/2 (June 17, 1986) (hereafter cited 
as the 1986 Draft). The text of this draft, together with the United States comments on it, was reprinted 
in United States Senate Caucus on International Narcotics Control, The U.N. Draft Convention Against 
Illicit Traffic in Narcotic Drugs and Psychotropic Substances: A Report on the Status of the Draft Convention, the 
U.S. Negotiating Position, and Issues for the Senate, 100th Congress, 1st Session, Committee Print, Senate Print 
No. 100-64 (1987) (hereafter cited as the 1987 Senate Report), pp. 22-38. 

142. U.N. Secretariat, Compilation of Comments and/or Textual Changes Submitted by Governments 
Concerning the Preliminary Draft Convention, U.N. Doc. E/CN.7/1987/2/ Add. 1 and Add. 2 (1987). 

143. For the full text of U.S. comments (October 1986), see 1987 Senate Report, supra note 141, pp. 
39-62. That report contains also an article-by-article comparison of U.S. position with the 1986 preliminary 
draft, id., pp. 13-21. 

144. Commission on Narcotic Drugs, Report on the 32nd Session, ESCOR, 1987, Suppl. No. 4 (E/1987/ 
17), pp. 14-25. 

145. Id., p. 19, para. 42. 

146. Id., pp. 1-2. 

147. U.N. Doc. E/RES/1987/27 (1987). 

148. U.N. Division of Narcotic Drugs, Working Document on the Draft Convention, U.N. Doc. DND/ 
DCIT/WP.l (April 6, 1987) (hereafter cited as 1987 Working Document), reprinted in Senate Report, 
supra note 141, pp. 63-79. 

149. Interim Report of the Open-Ended Intergovernmental Expert Group Meeting on the Preparation 
of a Draft Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, U.N. Doc. 
DND/DCIT/WP.12 (July 22, 1987), reprinted in Senate Report, supra note 141, pp. 80-89. 

150. Report of the International Conference on Drug Abuse and Illicit Trafficking, U.N. Doc. A/ 
CONF.133/12, U.N. Publ. Sales No. E.87.I.18 (1987), pp. 70-71, paras. 327-31. 

151. Id., p. 70, para. 326. 

152. See supra, text accompanying notes 133, 136 and 138. 

153. See supra note 135 and accompanying text, and text accompanying notes 137 and 139. 

154. Supra notes 141 and 148. 

155. Supra note 141. 

156. See, e.g., American Law Institute, Restatement of the Law Third, The Foreign Relations Law of the 
United States, v. 2, p. 57, 514, Comment b and p. 62. Reporters' Note 2; International Law Association, 
"The Freedom of the High Seas and the Exclusive Economic Zone: The Problem of Interactions," Report 
of the 61st Conference (1984), pp. 183-200; Horace B. Robertson, Jr., "Navigation in the Exclusive 
Economic Zone," Virginia Journal of International Law, v. 24 (1984), p. 865, at 870-80. 

157. See supra note 129 and accompanying text. 

158. Supra note 141. 

159. Supra note 78. 

160. 1987 Senate Report, supra note 141, p. 39, at 60-62 

161. Id., p. 80, at 88. According to the 1987 Report of the Secretary General on the Law of the Sea 
(U.N. Doc A/42/688, pp. 13-14, para. 44), the Expert Group considered also a version of the provision 
referring to the area "beyond the external limits of the territorial sea without prejudice to any rights 
enjoyed by the coastal State seaward of those limits," but objections were made to this formula on the 
ground that it was incompatible with the Convention on the Law of the Sea. 

162. For text, see International Maritime Organization, Convention for the Suppression of Unlawful 
Acts Against the Safety of Maritime Navigation, Rome, March 10, 1988, Article 4 ("The Convention 
applies if the ship is navigating or is scheduled to navigate into, through or from waters beyond the outer 
limit of the territorial sea of a single State, or the lateral limits of its territorial sea with adjacent States"), 
IMO Doc. SUA/CONF/15 (1988), reprinted in International Legal Materials, v. 27 (1988), p. 672, at 675. 



90 Law of Naval Operations 

163. For a summary of the discussion in the Commission, see Commission on Narcotic Drugs, Report 
on the Tenth Special Session, ESCOR, 1988, Suppl. No. 3 (E/1988/13), p. 29, paras. 59-61. 

164. Id., p. 30, para. 64. 

165. Id., para. 65. 

166. Id., p. 29, para. 63. 

167. Id., p. 41, para. 139. The representative cited in this connection paragraphs 4 and 7 of the principles 
and objectives of the Inter- American Program of Action Against the Illicit Use and Production of Narcotic 
Drugs and Psychotropic Substances and Traffic Therein, adopted by the Inter-American Specialized 
Conference on Traffic in Narcotic Drugs, Rio de Janeiro, April 1986. 

168. Report, supra note 163, p. 30, para. 66. 

169. Id., para. 67. 

170. Id., Draft resolution A.I, paras. 7-9. 

171. U.N. Doc. E/RES/1988/8 (1988). 

172. U.N. Press Release SOC/NAR/473 (1988). 

173. For text of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and 
Psychotropic Substances, see U.N. Doc. E/CONF. 82/15 (1988), reprinted in International Legal Materials, 
v. 28 (1989), p. 497. 

174. For the text, as revised by the Review Group, see U.N. Doc. E/CONF.82/3 (1988). 

175. These two texts are reproduced in the text following note 155, supra. 

176. In addition to the 1981 agreement with the United Kingdom cited in n. 119, supra, the United States 
has concluded an agreement with the Bahamas in February 1989 (not yet published in TIAS). 

177. See LOS Convention, Articles 29 (definition of warship), 107 (piracy), 110(5) (right of visit), 111(5) 
(hot pursuit), and 224 (protection of marine environment). 

178. During the July 1987 meeting of the Intergovernmental Group of Experts, it was emphasized that 
"any action against ships by States other than the flag States in cases where the evidence of the illicit 
traffic was not clear and manifest could lead to abuses and might undermine important legal principles." 
1987 Report of the Secretary General on the Law of the Sea, U.N. Doc. A/42/688 (1987), p. 13, para. 
43. 

179. Supra note 120. For a list of these treaties, see Hackworth, supra note 7, v. 1, p. 679. 

180. Sw/minote 119. 

181. According to the 1954 Statement of Policy of the United States on the Freedom of the Seas (Foreign 
Relations of the United States, 1952-1954, v. 1, p. 1721): 

It is a traditional policy of the United States to support the principle of freedom of the seas. Such 
freedom is essential to its national interests. The effective defense of its security, the maintenance 
of its pre-eminence in commercial shipping and air transport, and the prosperity of its fishing 
industry would all be hampered by any serious compromise of the principle of freedom of the 
seas. 



Alexander 91 



Chapter IV 
International Straits 

by 
Lewis M. Alexander* 



An international strait, as noted in paragraph 2.3.3 of The Commander's 
Handbook on the Law of Naval Operations (NWP 9) 1 is a strait used for 
international navigation between one part of the high seas or an exclusive 
economic zone and another part of the high seas or an exclusive economic 
zone. The definition comes from articles 37 and 38 of the 1982 United Nations 
Convention on the Law of the Sea, 2 and includes both straits which at some 
point are overlapped by the territorial seas of the bordering State or States, 3 
and those straits through which there is a continuous corridor of high seas 
or an exclusive economic zone (EEZ). 4 A strait is a natural waterway, "a 
contraction of the sea between two territories, being of limited width." 5 
There are in the world over two hundred waterways which would appear 
to satisfy the requirements of being an "international strait." 6 

1. The Transit Passage Regime 

According to the LOS Convention, a regime of transit passage prevails with 
regard both to ships and aircraft through an international strait that is 
overlapped at least at its narrowest part by bordering territorial seas. 7 Transit 
passage, "which shall not be impeded," 8 means "the exercise ... of the 
freedom of navigation and overflight solely for the purpose of continuous 
and expeditious transit of the strait." 9 There are a few carefully-phrased 
exceptions in the Convention to the transit passage provisions, as noted below. 
Passage of ships and aircraft is to take place in their "normal modes" of 
transit, 10 a term which the United States interprets as meaning that submarines 
may transit submerged, providing that depths in the strait are sufficient to 
permit such operations. This interpretation, which is reflected in paragraph 
2.3.3.1 of NWP 9, is consistent with the U.S. negotiating position throughout 
the Third United Nations Conference on the Law of the Sea (UNCLOS III). 11 

Warships and Military Aircraft in Transit Passage. Ships and aircraft, 
while exercising the right of passage, "must proceed without delay through 
or over the strait." 12 The concept of transit passage, however, does not 
preclude passage through the strait "for the purpose of entering, leaving or 



92 Law of Naval Operations 

returning from a State bordering the strait, subject to the conditions of entry 
to that State." 13 

While in transit passage, ships and aircraft must avoid "any threat or use 
of force against the sovereignty, territorial integrity or political independence 
of the State bordering the strait," 14 and "refrain from any activities other 
than those incident to their normal modes of continuous and expeditious 
transit, unless rendered necessary by force majeure or by distress." 15 It is United 
States policy that warships, operating in their normal mode through 
international straits overlapped by territorial seas, may undergo formation 
steaming, and launch and recover aircraft. 16 To the extent that such activities 
are incidental to normal navigational practices and do not otherwise constitute 
a threat directed against the bordering states, this interpretation appears 
consistent with the transit passage regime. 

Vessels in transit must comply with "generally accepted international 
regulations, procedures and practices" for (1) safety at sea, and (2) the 
prevention, reduction and control of pollution from ships. 17 What these 
provisions intend is that transit-passage vessels should comply with the 
international conventions adopted by the International Maritime 
Organization (IMO) over the past several decades, and which now are in 
force. 18 Although this restriction is set forth generally in paragraph 2.1.2 of 
NWP 9 it would be helpful to operational commanders (to whom the Handbook 
is directed) if it were explicitly included in paragraph 2.3.3.1, the paragraph 
dealing with transit passage. 

With regard to safety at sea, there are two basic IMO conventions. One 
is the 1972 Convention on International Regulations for Preventing Collisions 
at Sea. 19 The Convention regulates the behavior of ships at sea in respect to 
other vessels in order to prevent collisions, and it deals with such matters 
as lights, sound signals and conduct under conditions of restricted visibility. 
There are also provisions for the establishment of ships' routing systems. 
Under IMO's direction there is now an established world-wide network of 
traffic separation schemes, deep water routes, and areas to be avoided. 

A second convention is the 1974 Safety of Life at Sea Convention 
(SOLAS). 20 It is concerned with vessel construction issues, equipment, safety 
of navigation, and the carriage of dangerous goods. 

The principal IMO convention relating to vessel-source pollution is the 
1973 Convention for the Prevention of Pollution from Ships (MARPOL), as 
amended in 1978. 21 A State bordering a strait may adopt rules and regulations 
concerning vessel-source pollution, giving effect to the provisions of 
MARPOL. It should be noted, however, that warships, naval auxiliaries, and 
other vessels owned and operated by a State and used at the time being only 
on government non-commercial service, enjoy sovereign immunity and are 
exempt from the provisions of the LOS Convention regarding the protection 
and preservation of the marine environment. 22 But if a ship, entitled to 



Alexander 93 

sovereign immunity, acts in a manner which is contrary to the bordering 
State's laws and regulations, the flag State of the ship "shall bear international 
responsibility for any loss or damage which results to States bordering 
straits." 23 

During transit passage, foreign warships may not carry out research or 
survey activities without the prior authorization of the State bordering the 
strait. 24 They must also respect designated sea lanes and traffic separation 
schemes, if these were established in conformity with generally accepted 
international regulations. 25 The latter of these restrictions is in paragraph 
2.3.3.1 of NWP 9, but curiously the former is not. 

Military aircraft in transit passage shall normally comply with the Rules 
of the Air established by the International Civil Aviation Organization 
(ICAO), "and will at all times operate with due regard for the safety of 
navigation. " 26 They also shall "at all times monitor the radio frequency 
assigned by the competent internationally designated air traffic control 
authority or the appropriate international distress radio frequency. ,,27 

NWP 9 articulates the view that the transit passage regime of the 1982 
Convention remains viable in time of conflict. This approach to the Law of 
Neutrality posits that neutral nations cannot suspend, hamper or otherwise 
impede the right of transit passage of surface ships, submarines and aircraft 
of belligerent States through international straits. Under this view, belligerent 
forces in transit must proceed without delay, and must refrain from the threat 
or use of force against the neutral nation, or from acts of hostility or other 
activities not incident to their transit. The forces may not use international 
straits as a place of sanctuary or a base of operations, and warships may not 
exercise the belligerent right of visit and search in such waters. When in 
transit, however, belligerent forces may take such defensive measures as are 
consistent with their security, including the launching and recovery of 
aircraft, screen formation steaming, and acoustic and electronic surveillance. 28 
This application of the transit passage regime to the traditional law of 
neutrality seeks to preserve the balance between the rights of neutral States 
to preserve the inviolability of their territorial seas and the rights of 
belligerents to conduct armed conflict at sea. To what extent this approach 
will be embraced by other States remains to be seen, 29 although recent practice 
in the Straits of Hormuz would seem to indicate acceptance of this position. 

With respect to belligerent military aircraft, NWP 9 provides that the 
airspace above international straits remains open at all times to transit passage. 
Such passage must be continuous and expeditious, and must be undertaken 
in the normal mode of flight for the respective type of aircraft. The aircraft 
must refrain from any acts of hostility, but may engage in activities that are 
consistent with their security and the security of accompanying surface and 
subsurface forces. 30 Again, state practice in the Straits of Hormuz during the 
Iran-Iraq conflict seems to support this interpretation. 



94 Law of Naval Operations 

Rights and Duties of the Bordering State. The State bordering an 
international strait may, as noted earlier, "designate sea lanes and prescribe 
traffic separation schemes . . . where necessary to promote the safe passage 
of ships." 31 These sea lanes and traffic separation schemes must conform to 
standards set by IMO. Moreover, the bordering State may, when 
circumstances require, substitute other sea lanes or traffic separation schemes 
for those previously designated, although prior to the actual substitution, the 
bordering State must refer proposals to IMO with a view to the proposal's 
adoption. 32 States bordering straits "shall clearly indicate all sea lanes and 
traffic separation schemes ... on charts to which due publicity shall be 
given." 33 

A State bordering an international strait may adopt laws and regulations 
relating to "the loading or unloading of any commodity, currency or person 
in contravention of the customs, fiscal, immigration, or sanitary laws and 
regulations" of the bordering State. 34 Any bordering State's laws or 
regulations relating to sea lanes and traffic separation schemes, or to the 
loading or unloading of any commodity, currency, or person "shall not 
discriminate in form or in fact among foreign ships or in their application 
have the practical effect of denying, hampering or impairing the right of 
transit passage. 35 

According to the LOS Convention, there are two additional duties of a 
state bordering a strait. One is that it "give appropriate publicity to any 
danger to navigation or overflight within or over the strait of which [it has] 
knowledge." 36 The second is that it should by agreement with user States 
cooperate in the establishment and maintenance of "necessary navigational 
and safety aids or other improvements in aid of international navigation." 37 
NWP 9 would benefit from inclusion of these duties in its treatment of 
international straits. 

Summarizing the rights and duties of warships and military aircraft passing 
through straits used for international navigation between two parts of the 
high seas or exclusive economic zones, it is clear from the LOS Convention 
that such vessels or aircraft enjoy unimpeded transit passage in their normal 
modes of continuous and expeditious transit. The vessels must respect IMO- 
sanctioned sea lanes and traffic separation schemes and the aircraft shall 
normally comply with ICAO safety measures and monitor assigned radio 
frequencies. Warships must not carry out marine scientific research while 
in transit without authorization of the bordering State, and cannot load or 
unload commodities, currencies or persons in contravention of the laws and 
regulations of the bordering State. While the Convention's provisions 
regarding the protection and preservation of the marine environment do not 
apply to vessels having sovereign immunity, if the warship, in violating the 
bordering State's laws and regulations, causes loss or damage, the flag State 



Alexander 95 

(e.g., the United States) bears international responsibility for such loss or 
damage. 

What can the crew of a warship expect from the bordering State? That 
its sea lanes and traffic separation schemes conform to IMO standards. That 
any laws and regulations applying to warships do not negatively impact on 
the right of transit passage. That the State give publicity to any danger to 
navigation or overflight of which it has knowledge. That it establishes and 
maintains in the strait necessary navigation and safety aids. That under no 
condition does it suspend the right of transit passage to warships or military 
aircraft of States at peace with the bordering State, but involved in conflict 
with another State. NWP 9 accurately reflects these important principles. 38 

Archipelagic Sea Lanes Passage. Independent island countries possessing 
certain geographical characteristics may delimit straight baselines 
encompassing the archipelago, joining together the outermost islands and 
drying reefs. 39 Single baselines must not exceed 100 nautical miles in length, 40 
nor may they depart to any appreciable extent from the general configuration 
of the archipelago. 

Seaward of the baselines the archipelagic State may measure its territorial 
sea and exclusive economic zone. Within the baselines, the waters are termed 
"archipelagic waters," and have virtually the same status as territorial 
waters. 41 NWP 9 notes that the United States recognizes the right of 
qualifying States to establish archipelagic baselines and waters. 42 Traversing 
the archipelagic State are archipelagic sea lanes and air routes; these corridors 
join international straits located on the periphery of the enclosed State. The 
sea lanes and air routes include "all normal passage routes used as routes for 
international navigation or overflight through or over archipelagic waters." 43 
Through such sea lanes and air routes, warships and military aircraft enjoy 
"the rights of navigation and overflight in the normal mode solely for the 
purpose of continuous, expeditious and unobstructed transit." 44 

The sea lanes and air routes are defined by a series of continuous axis lines 
from the entry to the exit points of the archipelago, and ships and aircraft 
in archipelagic sea lanes passage must not deviate more than 25 miles to either 
side of such axis lines during passage. In cases where the width of the 
waterway is less than 50 miles, transiting ships and aircraft must not navigate 
closer to the coast than 10 per cent of the distance between the nearest points 
on islands bordering the sea lane. 45 The depiction of an archipelagic sealane 
provided in Figure 2-1 of NWP 9 provides a visual illustration of this latter 
concept. 

As in the case of international straits, the bordering or archipelagic State 
may designate sea lanes and traffic separation schemes within the archipelagic 
sea lanes, conforming to IMO standards. When circumstances require, the 
State may substitute other sea lanes and traffic separation schemes, after first 
submitting proposals to IMO. Warships must respect sea lanes and traffic 



96 Law of Naval Operations 

separation schemes established in accordance with IMO procedures. Other 
rights and duties of warships and military aircraft in international straits apply 
mutatis mutandis to archipelagic sea lanes passage. 46 

NWP 9 states the position that belligerent ships or aircraft, including 
submarines, surface warships, and military aircraft, retain the right of 
unimpeded archipelagic sea lanes passage through, over, and under 
archipelagic sea lanes. Such forces may engage in those activities that are 
incident to their normal mode of continuous and expeditious passage, are 
consistent with their security, and, in the case of aircraft, are consistent with 
the security of accompanying surface and subsurface forces. 47 Again, as with 
international straits, it is not clear whether other States will agree with 
superimposing the newly emerged principles of archipelagic waters on the 
traditional law of neutrality. 48 

Although a number of island nations have declared themselves to be 
"archipelagic States" and have delimited straight baselines about their 
territory, 49 none have formally designated archipelagic sea lanes and air 
routes. In these cases, the right of archipelagic sea lanes passage may be 
exercised through the inter-island routes normally used for international 
navigation. 50 

2. The History of the Transit Passage Regime 

The concept of transit passage through international straits, and of the 
analogous regime through archipelagic sea lanes, is a relatively recent 
phenomenon. Even in the years immediately following World War II, there 
were no universal principles concerning straits passage, and no consideration 
of archipelagic sea lanes even existed. 

Pre-UNCLOS I. Prior to 1949 the regime of passage through international 
straits overlapped by territorial seas was generally regarded as one of innocent 
passage, which "requires no supporting argument or citation." 51 Whether 
innocent passage referred to both warships and merchant vessels was not 
firmly established. 52 Where the minimum breadth of the strait was greater 
than the combined territorial sea breadths, a belt of high seas existed through 
the water way; within such a belt the high seas freedoms of navigation and 
overflight prevailed. The United States watched with considerable anxiety 
the gradual extension of territorial sea claims to breadths of up to twelve 
miles, 53 for this in effect closed off to air and subsurface navigation a 
considerable number of important straits, among them Gibraltar, Hormuz, 
and Malacca. 

The first international action to regulate the regime of passage through 
international straits came in the 1949 Corfu Channel Case, between the United 
Kingdom and Albania, which was decided by the International Court of 
Justice. 54 Two British destroyers were damaged by Albanian mines while 



Alexander 97 

passing through the Corfu Channel between the Greek island of Corfu and 
the Albanian mainland, with the resultant killing of 44 British seamen. Albania 
argued before the Court first, that the Corfu Channel was not an international 
strait, and second, that the British warships had no right of transit through 
the waterway without prior authorization by Albania. 

The Court held that Corfu Channel was indeed an international strait, not 
because of the volume of traffic moving through the waterway, nor of the 
importance of the strait to world commerce, but because of "its geographical 
situation as connecting two parts of the high seas and the fact of its being 
used for international navigation." 55 In other words, "it is sufficient that a 
strait be a 'useful route for international maritime traffic for it to be 
considered an international strait.' ,>56 

With regard to the right of British warships to transit the Corfu Channel, 
the Court held that in time of peace a State has the right to send its warships 
through such straits without prior authorization by the coastal State, provided 
such passage is innocent. 

Seven months later, the International Law Commission, established within 
the framework of the United Nations, began work on a codification of the 
regime of the high seas and the territorial sea. One result was a draft article 
on straits, which read "There must be no suspension of the innocent passage 
of foreign vessels through straits normally used for international navigation 
between two parts of the high seas." 57 The word "normally" had been 
included at the suggestion of the Soviet member and over the objections of 
the United States member. 

The 1958 Territorial Sea Convention. The International Law 
Commission's draft was used as a basis for negotiations at the 1958 Law of 
the Sea Conference (UNCLOS I), and article 16(4) of the subsequent 
Convention on the Territorial Sea and the Contiguous Zone reads "There 
shall be no suspension of the innocent passage of foreign ships through straits 
which are used for international navigation between one part of the high seas 
and another part of the high seas or the territorial sea of a foreign State." 58 

Three points are noteworthy in this article. First, innocent passage is non- 
suspendable, although it remains up to the coastal State to determine when 
passage by foreign vessels is non-innocent. Second, the word "normally" is 
omitted, adding to the confusion of the meaning of the phrase "used for 
international navigation." Third, there is inclusion of the term "the territorial 
sea of a foreign State," an obvious reference to the Strait of Tiran, bordered 
by Egypt and Saudi Arabia, which leads to the Gulf of Aqaba, at whose 
northern end are small areas of the territorial waters of Israel and Jordan. 
In 1958 the status of passage through the Gulf of Aqaba was a burning issue 
between Israel and Egypt. 59 

The Convention on the Territorial Sea and the Contiguous Zone came into 
force in 1964, but already there were evident deficiencies in the straits articles. 



98 Law of Naval Operations 

How subjective was a State's decision to declare certain types of passage as 
"non-innocent'' and therefore disallowed? Were nuclear submarines, armed 
with ballistic missiles, expected to travel on the surface through international 
straits and show their flag — as is required for innocent passage through 
territorial waters? Could the overflight of territorial seas within straits be 
undertaken without the consent of the coastal State? And what did Article 
23 of the Convention mean when it stated "If any warship does not comply 
with the regulations of the coastal State concerning passage through the 
territorial sea" it may be required to leave the area? Did this apply to the 
territorial waters of international straits? 

Another problem soon arose with respect to archipelagic States. Indonesia, 
in 1957, purported to close off its inter-island waters by a series of straight 
baselines, declaring the waters within the baselines to be internal. The United 
States and other maritime powers refused to recognize this closure, but in 
the early days of the Third Law of the Sea Conference (UNCLOS III) starting 
in 1973, efforts were made to achieve some form of compromise with States 
composed solely of one or more archipelagos. 60 

UNCLOS III. The United States, the Soviet Union, and other major 
maritime States were determined, at UNCLOS III, to improve on the non- 
suspendable innocent passage regime for international straits, but their efforts 
were opposed by a number of States, among them Spain and Morocco 
(bordering the Strait of Gibraltar), Southern Yemen (Bab el Mandeb), Iran 
and Oman (the Strait of Hormuz) and Malaysia and Indonesia (Malacca- 
Singapore Straits). The United Kingdom advanced, and both the U.S. and 
the Soviets supported, the concept of transit passage, and articles 37 through 
44 of the 1982 Convention spell out the details of this regime. Also article 
53 defines the regime of passage in archipelagic sea lanes. These provisions 
are supplemented by other Articles of the Convention relating specifically 
to the rights of Government-owned vessels and aircraft (except those used 
for commercial purposes) through international straits. 61 

The LOS Convention was adopted at Montego Bay, Jamaica, in December 
1982 by a vote of 130 in favor, 4 against (including the United States), and 
17 abstentions. The basic cause of the U.S. non-support was Part XI of the 
Convention, dealing with the international seabed regime. Since the United 
States not only voted against the final text, but has subsequently refused to 
sign, and has indicated its intention not to ratify or accede to the Convention, 
the question could arise, are all of the navigational rights contained in the 
text, necessarily applicable to the United States? This issue might conceivably 
become more acute if and when the Convention ultimately enters into force. 62 

The United States' position is that the non-seabed portions of the 
Convention are declaratory of emerging customary international law, and 
are therefore binding on all States, whether or not they are parties to the 
Convention. 63 Scholars may, however, debate what the bases for emerging 



Alexander 99 

customary international law really are, and why the United States, despite 
its views on the sanctity of the non-seabed articles, chooses to interpret article 
64 on highly-migratory species (e.g., tuna) in a way which appears at variance 
with the text. 64 

3. Exceptions to the Transit Passage Regime 

NWP 9 acknowledges, in a fleeting fashion, 65 that some straits are governed 
by the regime of non-suspendable irfhocent passage rather than transit passage. 
The text would be enhanced by a broader coverage of the exceptions. 

Innocent Passage Straits. Innocent passage is defined in the LOS 
Convention as "passage which is not detrimental to the peace, good order, 
or security of the coastal State." 66 The Convention lists a series of activities 
as non-conforming with innocent passage, among them any threat or use of 
force against the coastal State, collecting information to the prejudice of the 
coastal State's defense or security, or the carrying out of research or survey 
activities. 67 Innocent passage is the regime for transiting the territorial sea. 
It also applies to navigation through straits which connect the high seas or 
an EEZ with the territorial sea or a bordering State, or straits excluded from 
the regime of transit passage by article 38(1 ). 68 In the case of such straits, 
the regime of innocent passage is non-suspendable by the bordering State. 69 

There are two potential situations in which innocent passage straits may 
exist. One is where the strait leads from the high seas/EEZ directly into a 
coastal State's territorial waters without later re-emerging into the high seas 
or an EEZ. Such is the case, for example, with Canada's Queen Charlotte 
Strait between the northern end of Vancouver Island and the mainland of 
British Columbia. Relatively few of the waterways of this type are officially 
named. 70 

A second situation is where the strait connects the high seas/EEZ with 
an historic bay — whose waters are by definition internal. Such a bay would 
be closed off by a straight baseline, seaward of which are territorial waters. 
There are no generally-accepted criteria for establishing claims to historic 
bays, and the United States, which itself has few historic claims, 71 tends to 
resist such claims by other States. 72 But there are some straits connecting with 
water bodies where the coastal State asserts strong historic claims. 73 

Straits Not Overlapped by Territorial Seas. According to the LOS 
Convention, transit passage does not apply to a strait "if there exists through 
the strait a route through the high seas or through an exclusive economic 
zone of similar convenience with respect to navigational and hydrographical 
characteristics." 74 Through such a route, or "corridor," the high seas 
freedoms of navigation and overflight would automatically exist. 

If all States claimed a twelve-mile territorial sea, then all straits with least 
widths of less than 24 miles would have no such corridor. But a number of 



100 Law of Naval Operations 

States, including Australia and Finland, have territorial seas of less than twelve 
miles. This will permit a high seas/EEZ corridor through such waterways 
as Bass Strait, separating Tasmania from the Australian mainland, and the 
Entrance to the Gulf of Finland. 75 Any international strait, greater in least 
width than 24 miles, would ipso facto have a high seas/EEZ corridor passing 
through it. 

Three questions arise with respect to this provision. A first concerns the 
meaning of "similar convenience." The navigable channel, for example, 
might not coincide with the high seas/EEZ corridor. Associated with this 
is the issue of the minimum width the corridor must have in order to be a 
viable transit route. In The Bahamas, for example, a twelve-mile territorial 
sea would leave a corridor of only a quarter of a mile width through 
Providence Channel at its narrowest point. How could a foreign naval 
squadron utilize such a narrow space? In order to qualify as being of "similar 
convenience," the corridor should probably be two or three miles in width 
at its narrowest point. 76 

Finally, there is the question of the status of the territorial waters adjoining 
the high seas/EEZ corridor. Presumably the status is one of suspendable 
innocent passage, with no right of overflight by foreign aircraft, nor of passage 
submerged by foreign submarines. 77 

The * 'Messina Exception." There are certain specific exceptions 
provided for in the Convention to the transit passage regime, even for straits 
connecting two parts of the high seas or an EEZ with one another. One of 
these is the "Messina exception," which was intended primarily to cover the 
situation of Italy's Strait of Messina, between the mainland and the island 
of Sicily. This waterway, which has a minimum width of about two miles, 
was of concern to the Italian Government in the event that a potentially hostile 
fleet might seek transit passage rights through the strait. In response to Italy's 
fears, a provision was included in the Convention stating that a right of transit 
passage is excepted "if a strait is formed by an island of a State bordering 
the strait and the mainland" provided "there exists seaward of the island a 
route through the high seas or through an exclusive economic zone of similar 
convenience with respect to navigational and hydrographical characteris- 
tics." 78 Although the Convention does not so state, a right of non-suspendable 
innocent passage would exist through any strait as defined by article 38(1). 

There are some uncertainties regarding the article. First, as noted earlier, 
what does the phrase "of similar convenience" mean? Should conditions of 
fog, ice, channel depth, or travel distance associated with the alternative route 
be no more adverse than with respect to the original waterway? In the case 
of distance, a ship utilizing the Strait of Messina on a voyage from Marseilles 
to Trieste would save approximately 60 miles from a route traveling around 
the island of Sicily. 



Alexander 101 

Looking at straits other than Messina, article 38(1) might apply to the U.K. 's 
Pentland Firth between the Scottish mainland and the Orkney Islands, to 
Sweden's Kalmar Sund in the Baltic, and to Canada's Northumberland Strait 
in the Gulf of St. Lawrence. But there are definitional questions. For example, 
what constitutes the "mainland"? Can South Korea claim Cheju Strait as an 
article 38(1) exception when the mainland is actually a series of small islands 
and islets? In the western Aegean there is Keas Strait, close to Athens, which 
Greece might claim as an exception, although the "mainland" here is formed 
by the island of Mikronisos, about a mile off the true mainland coast. 

No matter what the geographic situation might be, it would appear from 
a reading of article 38(1) that a strait, in order to be excepted, should at some 
point be closed off by overlapping territorial seas. Further, the alternative 
route must include through it a high seas or EEZ corridor. Given the 
propensity of States to alter their territorial sea claims, there exists 
considerable uncertainty as to which straits of the world would qualify as 
article 38(1) exceptions. United States policy is that the number of straits 
excepted under this article should be kept to an absolute minimum. 

Straits Regulated by International Conventions. Another exception to 
the transit-passage regime is contained in article 35(c) which exempts straits 
in which passage "is regulated by long-standing conventions in force 
specifically relating to such straits." The obvious reference here is to the 
Turkish Straits, 79 which are regulated by the 1936 Montreux Convention. 80 
This Convention guarantees freedom of transit through the Straits for 
merchant vessels of all nations at all times. But there is no corresponding 
right of free overflight of the Turkish Straits. The Convention also contains 
certain restrictions on the transit of warships of both non-Black Sea powers 
and Black Sea powers, one of them being that the maximum aggregate 
tonnage of warships of non-Black Sea powers within the Black Sea at any 
one time must not exceed 45,000 tons. 

Another waterway to which this article might apply is the Danish Straits 
(Little Belt, Great Belt and Oresund), the subject of an 1857 Convention which 
lifted the dues requirements for ships transiting the Straits. 81 Since foreign 
warships at that time were not subject to such dues, some recent writers have 
argued that Denmark has no legal grounds for interfering with the passage 
of foreign warships through the Straits. But a 1976 Danish Ordinance requires 
advance notification for the passage of foreign warships through the Straits, 
demands that foreign submarines operate on the surface flying their flag, and 
notes that military aircraft can overfly Danish territorial waters (including 
those within the Straits) only if advance permission has been obtained. 82 

Two other straits that might conceivably be affected by the article are 
Gibraltar and Tiran. A 1904 Declaration between Great Britain and France 
regarding Egypt and Morocco guaranteed freedom of navigation through the 
Strait of Gibraltar, but made no mention of overflight rights. 83 The 



102 Law of Naval Operations 

Government of Spain has on occasion held that since Gibraltar is governed 
by the 1904 Declaration, freedom of overflight through the Strait does not 
exist. In 1973, at the outset of fighting between Israel and Egypt, U.S. military 
aircraft flying east from the Azores in order to supply Israeli forces, navigated 
through the approximately two-mile wide high-seas belt at the narrowest 
point in the Strait in order to avoid the three-mile territorial seas (then 
recognized by the United States) of Spain and Morocco. But in the 1986 air 
strikes on Libyan terrorist support infrastructure (after the United States had 
acknowledged other States* rights to a twelve-mile territorial sea) U.S. 
military aircraft operating from bases in Great Britain utilized the transit 
passage regime, as provided for in the LOS Convention, to justify overflying 
the Strait of Gibraltar. 

In the case of the Strait of Tiran, the waterway, as noted earlier, connects 
the high seas/EEZ of the Red Sea with the territorial waters of the two 
bordering States, but also with the territorial seas of Israel and Jordan. Article 
45(l)(b) of the LOS Convention provides for a regime of non-suspendable 
innocent passage through straits "between a part of the high seas or an 
exclusive economic zone and the territorial sea of a foreign State." Following 
the independence of Israel in 1948, Egypt sought to restrict the movement 
of Israeli shipping through the Strait on the grounds that it did not constitute 
"innocent passage" so far as Egypt was concerned. Twice Israeli forces 
occupied the Egyptian heights overlooking Tiran to ensure that the Strait 
would be open to Israeli shipping. The 1979 Treaty of Peace between Egypt 
and Israel provides "The Parties consider the Strait of Tiran and the Gulf 
of Aqaba to be international waterways open to all nations for unimpeded 
and non-suspendable freedom of navigation and overflight." 84 Does this 1979 
Treaty represent a "long-standing international convention," and what is its 
effect on Saudi Arabia, guarding the eastern shore of the Strait, since that 
country is not a party to the Egyptian-Israeli Peace Treaty? 

Internal Waters in a Strait. The transit passage regime does not apply 
in any areas of internal waters within a strait, "except where the 
establishment of a straight baseline . . . has the effect of enclosing as internal 
waters areas which had not previously been considered as such." 85 The 
relatively few cases where internal waters exist within a strait are in 
connection with juridical 86 or historic bays, river mouths, harbor systems and 
roadsteads, and with straight baseline regimes. In the Corfu Channel, for 
example, a juridical bay exists along the western (Greek) shore and serves 
to narrow somewhat the width of the belt through which the transit passage 
regime applies. Other affected straits include the Oresund and the Strait of 
Hormuz. In the case of the Oresund, Copenhagen's roadstead extends about 
three miles into the main waterway, forcing the traffic lane eastward toward 
Sweden. 



Alexander 103 

In the Strait of Hormuz, the Omani straight baseline system joins the 
mainland with the offshore islands out to the Great and Little Quoin, with 
the result that the traffic separation zone, landward of the Quoins, passes 
within the baseline. Although to date Oman has not sought to limit in any 
way passage along this sea lane, it might conceivably argue that the waters 
within the baseline had previously been considered as internal, and therefore 
were not subject to the transit passage regime. 

Straits Connecting With the Territorial Sea of a Foreign State. A final 
exception to transit passage is a convention provision which calls for non- 
suspendable innocent passage in a strait "between a part of the high seas or 
an exclusive economic zone and the territorial sea of a foreign State." 87 
Mention has already been made of the Strait of Tiran, for which this provision 
was intended. The only other straits to which this provision might apply are 
Head Harbour Passage, leading through Canadian waters off the Province 
of New Brunswick to Passamaquoddy Bay, shared by New Brunswick and 
the State of Maine; Guatemala's Entrance to the Bay d'Amatique; and two 
shallow waterways in the Persian Gulf — the Bahrain-Qatar Passage leading 
to Saudi Arabian waters; and the Bahrain-Saudi Arabia Passage connecting 
with the waters of Qatar. 

5. The Record of State Practice 

NWP 9 does not address the record of State compliance with the transit 
passage regime. Given the stated purpose of that publication, this is probably 
unnecessary. It would be appropriate here, however, to examine what that 
record has been. The principal deviations from the Convention's straits 
articles have occurred in the Arctic. In 1985, the Canadian Government 
delimited a series of straight baselines about its Arctic Archipelago in reaction 
to the transit through the Northwest Passage of the U.S. Coast Guard vessel, 
POLAR SEA. 88 The Government also announced that the waters within the 
baselines were henceforth to be considered internal waters, with no right of 
free navigation existing through them. The legal justifications for Canada's 
actions have been variously described as environmental protection, the 
exercise of historic rights, the non-application of articles 37 and 38 to the 
Northwest Passage, or simply the delimitation of straight baselines in 
accordance with the provisions of the LOS Convention. 89 The United States 
protested Canada's enclosure action, but three years later concluded an 
agreement with Canada which, on the one hand, provided for prior 
notification by the U.S. in the event of its sending ice breakers through the 
Northwest Passage, and on the other reserved the U.S. position with regard 
to the Canadian assertion that the Northwest passage did not qualify as an 
international strait. 90 The United States was particularly concerned that if 



104 Law of Naval Operations 

it acquiesced in the Canadians' action, other States might also close off 
bordering straits on environmental or other grounds. 

The Soviet Union considers the waters of the Laptev, East Siberian, and 
Chuckchi Seas, north of Siberia, as having a "special status" of their own. 
In 1967, for example, the Soviets turned back two U.S. Coast Guard vessels, 
the EDISTO and the EASTWIND, which were traveling eastward from the 
Barents and Kara Seas, and attempting to pass through Vil'kitsky Strait into 
the Laptev Sea. The Soviets never explained the rationale for their action, 
but so far as is known, no foreign-flag vessels since then have travelled in 
the Soviets' northern waters to the east of Vil'kitsky Strait. 91 

Outside of the Arctic basin, the Soviets apparently consider the Sea of 
Okhotsk, off the eastern Siberian coast, as a "closed sea," not open to foreign 
warships. Most of the coastline of the Sea is Soviet territory, although Japan 
controls some 50 miles of the coast on the island of Hokkaido. The Soviet 
position affects the passage of foreign warships through the straits of the 
Kurile Islands, leading into Okhotsk. Elsewhere, China considers Hainan 
Strait, connecting the South China Sea with the Gulf of Tonkin, to be an 
"historic" strait, although nowhere in the LOS Convention is there provision 
for an international strait to be claimed as historic. 

One situation which might in time prove troublesome is Greece's policy 
toward the regime of passage through the inter-island waters of the Aegean 
Sea. The islands are controlled by Greece, but the waterways lead to Turkey. 
Because the islands are a part of Greece — basically a mainland country — they 
cannot be closed off as an archipelagic State, and Greece has maintained, first, 
that not all the inter-island passages are international straits, and second, that 
Greece reserves the right to designate the waterways to which the transit 
passage regime applies. 92 The issue of passage through non-archipelagic island 
groups was never settled at UNCLOS III. 

6. The Relative Importance of International Straits 

There is no fixed method for determining which straits are more important 
than others. One possible index is the number of transiting ships per day. 
In this respect, the leading straits are: Dover, Malacca-Singapore, Kattegat 
(at the northern approach to the Danish Straits), Gibraltar, Hormuz, and the 
Turkish Straits. It is difficult to obtain reliable statistics on many other straits, 
since no generally-available method of counting numbers of transits through 
these waterways exists. 

Choke Points. Straits constituting strategic choke points are of critical 
economic and military importance. The term "choke point" implies that in 
the case of a particular waterway there is an opportunity for a State to close 
off, or at least restrict, the flow of ocean-borne traffic which is critical to 
a nation or nations. Three issues would appear to be of importance with 



Alexander 105 

respect to choke points. First, there is no readily available alternative 
waterway to use if passage through the choke point is denied or restricted. 
The Strait of Hormuz is an obvious choke point in this regard; a strait, such 
as Anegada Passage, connecting the Caribbean with the Atlantic, would not 
be a prime choke point because of the number of alternative waterways 
available. 

Second, a choke point is relatively narrow, and thus capable of being 
blocked — by mines, sunken ships, shore batteries, etc. Third, the waterway 
is of importance to the commercial and/or military traffic of some State or 
States. With respect to this last point, a distinction might be made between 
"global" and "regional" choke points. Gibraltar is a global choke point, of 
concern to many of the world's nations; the Turkish Straits are more regional 
in nature, of particular significance to the countries bordering the Black Sea. 

Various listings of choke points are periodically compiled but with most 
analysts agreeing on the basic seven: the Danish Straits, Dover, Gibraltar, 
Bab el Mandeb, Hormuz, Malacca-Singapore, and Lombok (or Sunda) at the 
southern approaches to Indonesia. The Suez and Panama Canals are also choke 
points. Other frequent candidates are the Turkish Straits, Magellan, Bering 
Strait, Korea Strait, Osumi (Colnett) Strait — a major approach to the Sea 
of Japan and South Korea — Formosa Strait, and Windward and Mona Passages 
in the Caribbean. Some listings also include the Greenland-Iceland-UK gap, 
although this is hardly a narrow international waterway. 

Other Important Straits. In addition to the straits noted above, some 
sixteen others would seem to be of concern to the U.S. and its allies. These 
are: Anegada Passage, Balabac Strait, the Straits of Florida, Kasos and Kithira 
Straits in the eastern Aegean, Luzon Strait, Makassar Strait, the Strait of 
Otranto, San Bernardino Strait, Soya-kaikyo (La Perouse Strait), Surigao 
Strait, Strait of Tiran, Torres Strait, Tsugaru-kaikyo, Unimak Pass, and Verde 
Island Passage. This is not meant to imply that other straits are not also 
significant, but perhaps these are the most strategic at this point in time. 

For the United States, all straits are of potential importance, since no one 
can forecast where future military operations may be necessary. 93 Who, for 
example, in 1940, could have predicted that within two years the U.S. would 
be vitally concerned with the geography of Indispensable, Manning and 
Bougainville Straits in the Solomon Islands — or, a short time later, with 
Dampier, Vitiaz and Isumrud Straits off northeastern New Guinea? 

Notes 

* Director, Graduate Program of Marine Affairs, University of Rhode Island, Kingston, Rhode Island. 

1. U.S. Navy Dept., The Commander's Handbook on the Law of Naval Operations, NWP 9 (Washington: 
1987) (herinafter NWP 9 or Handbook). 

2. United Nations Conference on the Law of the Sea, 3d, United Nations Convention on the Law of the 
Sea, A/CONF. 62/122 (n.p.: 1982) (hereinafter LOS Convention). 



106 Law of Naval Operations 

3. In this Chapter, the term "bordering State" will be used in connection with the regime of straits, 
whether or not there are one, two, or three States actually bordering a particular strait. 

4. Within an exclusive economic zone, the high seas freedoms of navigation and overflight prevail. 
LOS Convention, supra note 2, art. 58(1). 

5. Erik Bruel, International Straits: A Treatise on International Law (1947), p. 19. 

6. Lewis Alexander, Navigational Restrictions Within the New LOS Context: Geographical Implications for the 
United States (Peace Dale, ILL: Offshore Consultants, 1986), p. 99. 

7. LOS Convention, supra note 2, art. 38(1). 

8. Id. 

9. Id., art. 38(2). 

10. Id., art. 39(1 )(c). 

11. For an analysis of this position see Bruce A. Harlow, "Comments Concerning the 1982 Law of 
the Sea Convention," Law and Contemporary Problems, Spring 1983, v. 46, pp. 130-135. 

12. LOS Convention, supra note 2, art. 39(1 )(a). 

13. Id., art. 38(2). 

14. Id., art. 39(1 )(b). 

15. Id., art. 39(1 )(c). 

16. NWP 9, supra note 1, par. 2.3.3.1. 

17. LOS Convention, supra note 2, art. 39(2). 

18. The International Maritime Organization, headquartered in London, is a specialized agency of the 
United Nations, and has, inter alia, the function of setting world-wide standards of pollution prevention, 
navigation efficiency, and marine safety. 

19. International Regulations for Preventing Collisions at Sea, Oct. 20, 1972, United States Treaties and 
Other International Agreements, v. 28, p. 3459, T.I.A.S. 8587. 

20. Inter-Governmental Maritime Consultative Organization: International Convention for the Safety 
of Life at Sea, 1974, International Legal Materials, July 1975, v. 14, p. 959. 

21. International Conference on Marine Pollution: International Convention for the Prevention of 
Pollution from Ships, 1973, International Legal Materials, Nov. 1983. v. 12, p. 1319. 

22. LOS Convention, supra note 2, art. 236; NWP 9, supra note 1, par. 2.1.2. 

23. LOS Convention, supra note 2, art. 42(5). 

24. Id., art. 40. 

25. Id., art. 41(3) and (7). 

26. Id., art. 39(3)(a). 

27. Id., art. 39(3)(b). 

28. NWP 9, supra note 1, par. 7.3.5. 

29. See Mark W. Janis, "Neutrality," infra Chapter VI; A V. Lowe, "The Commander's Handbook on 
the Law of Naval Operations," infra chapter V. 

30. NWP 9, supra note 1, par. 7.3.7. 

31. LOS Convention, supra note 2, art. 41(1). 

32. Id., art. 41(4). 

33. Id., art. 41(6). 

34. Id., art. 42(l)(d). 

35. Id., art. 42(2). 

36. Id., art. 44. 

37. Id., art. 43(a). 

38. NWP 9, supra note 1, par. 2.3.3.1. 

39. An archipelagic State is one wholly constituted by islands, and to be entitled to draw straight 
baselines, the area of water to the area of land within the straight baselines must be between 1 to 1 and 
9 to 1. LOS Convention, supra note 2, arts. 46 and 47. 

40. Id., art. 47(2). Up to 3 percent of the total number of baselines enclosing the archipelago may exceed 
100 miles, up to a maximum length of 125 miles. Id. 

41. The only difference between territorial and archipelagic waters is that in the latter, traditional fishing 
rights of adjacent neighboring States shall continue and be respected. 

42. NWP 9, supra note 1, par. 1.4.3. 

43. LOS Convention, supra note 2, art. 53(4). 

44. Id., art. 53(3). 

45. Id., art. 53(5). 

46. Id., art. 54. 

47. NWP 9, supra note 1, par. 7.3.6. 

48. See Janis, supra note 29. 



Alexander 107 

49. Among these States are Antigua and Barbuda, Cape Verde, Comoros, Fiji, Indonesia, Kiribati, 
Maldives, Mauritius, Philippines, Sao Tome and Principe, Solomon Islands, Trinidad and Tobago, Tuvalu, 
Vanuatu. 

50. LOS Convention, supra note 2, art. 53(12). 

51. Philip Jessup, The Law of Territorial Waters and Maritime Jurisdiction (New York, N.Y.: G.A. Jennings, 
1927), p. 120. 

52. Id. 

53. In 1945, 77 percent of the world's 60 coastal States had 3-mile territorial sea claims; by 1979, this 
figure had dropped to 18 percent of 131 States. 

54. Hague, International Court of Justice, Corfu Channel Case ([The Hague]: The Court, 1949), v. 4. 

55. Id., p. 23. 

56. R.R. Baxter, The Law of International Waterways (Cambridge, Mass. Harvard University Press, 1964), 
p. 9. 

57. United Nations, General Assembly, International Law Commission, Report, 8th Session, A/3159 (New 
York: 1956), art. 17. 

58. Convention on the Territorial Sea and Contiguous Zone, April 29, 1958, United States Treaties and 
Other International Agreements, v. 15, p. 1606, T.I.A.S 5639, 516 United Nations Treaty Series, v. 516, p. 205, 
art. 16 (4). 

59. See, e.g., Baxter, supra note 56, pp. 160 and 209. 

60. For a discussion of the LOS negotiations on archipelagic States, see Patricia Rodgers, Midocean 
Archipelagos and International Law (New York: Vantage Press, 1981). 

61. E.g., LOS Convention, supra note 2, art. 236. 

62. The LOS Convention enters into force twelve months after the sixtieth ratification or accession. 
LOS Convention, supra note 2, art. 308(1). As of December 1989, 42 states had ratified the Convention. 
Council on Ocean Law, Ocean Policy News, Dec. 1989, p. 1. 

63. See, e.g., the remarks of Brian Hoyle, Director, Office of Oceans Law and Policy, U.S. Department 
of State, in Lawrence Juda, ed., The United States Without the Law of the Sea Treaty: Opportunities and Costs 
(Wakefield, R.I., Times Press, 1983), p. 65 and 70; Restatement (Third) of the Foreign Relations of the 
United States, Part V, Introduction, v. 2, p. 5. 

64. The United States, almost alone among coastal States, asserts that the coastal State has no jurisdiction 
over highly migratory species, but requires international agreement for effective management. See 
Proclamation No. 5030, 3 C.F.R. 22 (1983 Compilation), and accompanying press statement, Weekly Comp. 
ofPres. Doc, v. 19, p. 384 (April 14, 1983). 

65. NWP 9, supra note 1, par. 2.3.3.1. 

66. LOS Convention, supra note 2, art. 19(1). 

67. LOS Convention, supra note 2, art. 19(2). NWP 9 contains a listing of those activities that a warship 
may not undertake while in innocent passage. NWP 9, supra note 1, par. 2.3.2.1. 

68. Id., art. 45(1). Those excluded by article 38(1) are straits between the mainland and an island of 
the bordering State where a route of similar convenience exists seaward of the island. See discussion of 
"The Messina Exception," infra, in text following note 76. 

69. Id., art. 45(2). 

70. There are no named straits, for example, given to the waterways connecting the Atlantic Ocean 
with Boston Harbor, Narragansett Bay, New York Bay, or the Chesapeake Bay. 

71. In United States v. Louisiana, 470 U.S. 93, 105 S.Ct. 1074, 84 L.Ed.2d 73 (1985), the Supreme Court 
ruled that the Mississippi Sound was an historic bay, notwithstanding the formal renunciation by the United 
States in 1971 of its earlier assertion of historic bay status of those waters. All other bays claimed as historic 
by the United States would now qualify as juridical bays. 

72. The United States recognizes very few historic bay claims by foreign States, unless the bay could 
also be closed off as a juridical bay. One claim recognized is to the Gulf of Manner off the southeast 
Indian coast. 

73. Canada, for example, strongly defends its historic claim to Hudson Bay, thereby affecting the regime 
of Hudson Strait. 

74. LOS Convention, supra note 2, art. 36. 

75. Prior to President Reagan's 1989 Proclamation of a 12-mile territorial sea for the United States 
(see Proc.No. 5928, 53 Fed. Reg. 777, January 9, 1989) this list would have included the Strait of Juan 
de Fuca between the United States and Canada. 

76. Three nautical miles is the most frequently used width for sea lanes established under IMO auspices. 

77. There is no provision in the LOS Convention for any status for bordering waters other than that 
of the territorial sea. 

78. LOS Convention, supra note 2, art. 38(1). 

79. The Turkish Straits consist of the Bosporus, Sea of Marmara, and the Dardenelles. 



108 Law of Naval Operations 

80. Convention Regarding the Regime of the Straits, with Annexes and Protocol, July 20, 1936, League 
of Nations Treaty Series, v. 173, p. 213. 

81. Treaty for the Redemption of the Sound dues between Austria, Belgium, France, Great Britain, 
Hanover, the Hansa Towns, Mecklenburg-Schwerin, the Netherlands, Oldenburg, Prussia, Russia, 
Sweden-Norway, and Denmark, March 14, 1857, C. Parry, Consolidated Treaty Series (Dobbs Ferry, New 
York: Oceana Publications, Inc., 1969), v. 116, p. 357. 

82. Gunnar Alexandersson, The Baltic Straits: International Straits of the World (Boston: Nijhoff, 1982), p. 
22. 

83. "Declaration Between Great Britain and France Respecting Egypt and Morocco, Together with 
the Secret Articles, April 8, 1904," British and Foreign State Papers (London: His Majesty's Stationary Office, 
1912), v. 101, p. 1053. 

84. "Treaty of Peace Between the Arab Republic of Egypt and State of Israel, 1979," International Legal 
Materials, March 1979, v. 18, p. 362. 

85. LOS Convention, supra note 2, art. 35(a). 

86. A juridical bay is described in article 10 of the LOS Convention as a well-marked indentation of 
the coast, whose distance across at its mouth does not exceed 24 miles and whose area is at least as large 
as a semi-circle whose diameter is a line drawn across its mouth. See also, supra note 1, par. 1.3.3. 

87. LOS Convention, supra note 2, art. 45(1 )(b). 

88. In August 1985, the U.S. Coast Guard vessel POLAR SEA, with the support and participation of 
Canada, transited the Northwest Passage, from east to west. Since the U.S. Government, prior to the 
voyage, refused to formally request the Canadian Government's permission for the transit, the Canadian 
press categorized the voyage as an infringement on Canadian sovereignty. The New York Times, Sep. 11, 
1985, sec. I, p. 9:1. 

89. Article 7 of the LOS Convention provides that "[i]n localities where the coastline is deeply indented 
and cut into, or if there is a fringe of islands in the immediate vicinity, a method of straight baselines 
may be employed . . . [which] must not depart to any appreciable extent from the general direction of 
the Coast." Critics of the Canadian action argue that the baseline system in the Arctic Archipelago does 
not conform with these criteria. 

90. Agreement Between the Government of the United States of America and the Government of 
Canada on Arctic Cooperation, Ottawa, Jan. 11, 1988, International Legal Materials, Jan. 1989, v. 28, p. 142. 
The Agreement provides that "all navigation by U.S. icebreakers within waters claimed by Canada to 
be internal" will be undertaken only with the consent of the Canadian Government. Id., p. 143, para. 
3. But the agreement does not affect the U.S. position that Canada's declaration that the Northwest Passage 
is not an international strait is without legal foundation. Id, par. 4. 

91. The September 23, 1989, joint statement of U.S. Secretary of State James Baker and Soviet Foreign 
Minister Eduard Shevardnadze, issued at Jackson Hole, Wyoming, although not relating directly to straits 
but rather to innocent passage, may indicate the current position of the Soviet Union toward passage 
through the territorial sea generally, including such straits as Vil'kitsky. The "Uniform Interpretation 
of Rules of International Law Governing Innocent Passage," which were attached to that statement, 
provides, "All ships, including warships, regardless of cargo, armament or means of propulsion, enjoy 
the right of innocent passage through the territorial sea in accordance with international law, for which 
neither notification nor authorization is required." (Emphasis supplied) (Copy in possession of Editor). 

92. Statement by the Delegation of Greece to the Third United Nations Conference on the Law of 
the Sea, A/CONF. 62/WS/26, Third United Nations Conference on the Law of the Sea, Off. Rec, v. 16, p. 
266 (1982). 

93. Richard Grunawalt, "United States Policy on International Straits," Ocean Development and 
International Law, v. 18, no. 4, 1987, p. 445. 



Lowe 109 



Chapter V 

The Commander's Handbook on the 

Law of Naval Operations 
and the Contemporary Law of the Sea 



by 
A. V. Lowe* 



The Commander's Handbook on the Law of Naval Operations, 1 issued by the 
United States Department of the Navy in July 1987, is a model of clarity 
and conciseness. Given the audience for which it was intended, it is 
resoundingly successful in explaining the intricacies of the law. Its clear and 
authoritative style, however, sometimes conceals the controversial nature of 
some of the statements which it includes. It is the purpose of this paper to 
review the Handbook, discussing the more controversial pronouncements and 
setting it against the background of the contemporary, and sometimes 
unsettled, Law of the Sea. The comments made are in no sense intended as 
a criticism of the drafting of the Handbook as an exposition of the United States' 
view of international law, which could scarcely be bettered. They merely 
point out some of the difficulties which attend that view of the law, which 
for the most part could not reasonably be canvassed in the Handbook itself. 
The comments are not an exhaustive catalogue of the cases where the 
legislation or views of third States or commentators differ from that of the 
United States, but they are illustrative of the kinds of questions which might 
arise from strict adherence to the account given in the Handbook. 

The Handbook is divided into two parts, The Law of Peacetime Naval 
Operations and the Law of Naval Warfare, which will be discussed in turn. 
First, however, it is necessary to deal with certain general issues raised in 
the Preface to the Handbook. 

The Handbook claims disarmingly to set forth "general guidance," and not 
to be "a comprehensive treatment of the law" or "a substitute for the 
definitive legal guidance provided by judge advocates and others responsible 
for advising commanders on the law." 2 However, while there are certainly 
detailed points of interpretation upon which the Handbook is not to be taken 
as a definitive guide, it is plain that the Handbook is intended to represent 
United States Navy thinking on the broad lines of international law, and hence 
to some extent will operate as a constraint upon those who give more detailed 



110 Law of Naval Operations 

advice. For instance, the Preface lists only two sources of international law: 
custom and treaties. There is no suggestion of recourse to resolutions of 
international organizations for the determination of what international law 
might be. This is unfortunate since, quite apart from the crucial importance 
of such resolutions in the particular context of the legality of operations on 
the deep sea-bed, resolutions adopted by bodies such as the International Civil 
Aviation Organization are of great significance in the adumbration of the 
law concerning other maritime zones of more immediate concern to naval 
commanders. 

Moreover, the definition of customary international law given in the 
Preface, though according closely with classical formulations which treat 
customary law as a homogeneous body of law applicable to all States, gives 
no sense of the decisive importance of persistent objection and acquiescence 
in State practice, which can, respectively, except States from the binding 
force of emergent norms of customary international law or bind them to 
acceptance of norms which command less than general acceptance in State 
practice. 3 Given that the United States persistently objected to territorial sea 
claims in excess of three miles until its conditional acceptance of wider claims 
in 1983 or so, 4 and that some of the statements in the Handbook amount to 
novel interpretations of the law of the sea, persistent objection and 
acquiescence remain important considerations in the accurate determination 
of the rules of international law applicable in any concrete dispute. 

The Law of Peacetime Naval Operations 

1. Legal Divisions of the Oceans and Airspace. The first chapter in this part 
of the Handbook deals with the legal divisions of the oceans and airspace, and 
it begins with a summary of the law concerning baselines. Two points call 
for comment. First, while acknowledging the propriety of straight baselines 
drawn along coastlines where it is impracticable to utilize the low-water 
mark, as where the coastline is deeply indented or fringed by islands, 5 the 
Handbook notes that "the United States, with few exceptions, does not employ 
this practice and interprets restrictively its use by others." 6 It is true that 
the restrictions on the use of straight baselines set out in the 1958 Territorial 
Sea Convention were recently reaffirmed in the 1982 Convention, and there 
was no significant support at UNCLOS III for any substantial relaxation of 
those restrictions. On the other hand, State practice is clearly moving towards 
a liberal interpretation of the circumstances in which straight baselines can 
be used. A recent study 7 sets out straight baseline claims made by 46 States, 
including many (such as those made by Algeria, Burma, Colombia, Cuba, 
Ecuador, France, Guinea, Iran, Italy, Kenya, Madagascar, Morocco, 
Mozambique, Senegal, Spain and Vietnam) which are by no means easy to 



Lowe 111 

reconcile with the conventional and customary law criteria for the use of 
such baselines. 

It is understood that the United States has protested against some of these 
claims, reserving its legal rights. There is a risk of the United States being 
held to have acquiesced in the validity of other claims, although since the 
acquiescence only arises from silence in circumstances which demand a protest 
because they affect the actual (as opposed to the abstract) interests of a State, 
this possibility is theoretical rather than real. However, there is a more 
insidious danger. If the pattern of liberal use of baselines persists and spreads, 
a view might emerge that it represents either an agreed interpretation of the 
conventional rules or a development in the customary law, in either case 
allowing such claims. This gives rise to complex questions of treaty law 
concerning the ability of what may ultimately be a minority (perhaps a small 
minority) of parties to hold out against an interpretation of a multilateral 
treaty adopted by the other parties. This problem is compounded by the 
difficult question whether the boundaries of a State, determined inter alia by 
its baseline, can differ vis-a-vis different States. While it would probably 
overstate the case to say that the United States is in danger of having its legal 
rights eroded by this development in State practice, there is at least a cause 
for concern here which should be recognized. 

The second point concerns claims to historic bays, such as the Libyan claim 
to the Gulf of Sirte which has occasioned difficulties in the past. 8 The Handbook 
states that "[t]he United States has taken the position that an actual showing 
of acquiescence by foreign nations in such a claim is required, as opposed 
to a mere absence of opposition," 9 if the historic claim is to be valid. This 
is controversial for two reasons. First, it might be said that it is not the 
acquiescence of foreign nations, but only of the United States, which need 
be shown: if the United States had acquiesced in the claim, it would be bound 
to accept its validity, whether or not other States had acquiesced in it. 
Acquiescence by the United States is, however, unlikely. In the Gulf of Sirte, 
for instance, the United States put beyond doubt its rejection of the Libyan 
claims by asserting its freedom to use the disputed waters as high seas. 
Secondly, the requirement of acquiescence, as opposed to the mere absence 
of protest, is itself less clearly settled than the Handbook might imply. The 
International Court in the Anglo-Norwegian Fisheries case suggested that the 
general toleration of a notorious claim — the mere absence of protest — is 
enough to render the claim valid, and controversy over the matter is alive 
in academic circles. 10 This point might also be argued in relation to straight 
baseline systems, which are simply a means of defining those waters which 
could become internal waters of a State by way of historic title even if the 
original drawing of the baseline was unlawful. Here again is a possibility that 
the Handbook points to in the rejection of certain maritime claims which might 
be held by an international tribunal to be opposable to the United States. 



112 Law of Naval Operations 

The Handbook turns next to the definition of the various maritime zones 
which might be claimed by States. Although these definitions are not of 
central importance, the rights and duties of States within the zones being dealt 
with in more detail elsewhere in the Handbook, it is worth noting that some 
of the definitions are questionable. Paragraph 1.5 of the Handbook is headed 
"International Waters," and covers the contiguous zone, Exclusive Economic 
Zone (EEZ), high seas and security zones. The contiguous zone is stated, with 
an impeccable adherence to the wording of the 1958 and 1982 Conventions, 11 
to be the zone within which a State may prevent and punish infringements 
of its customs, fiscal, immigration and sanitary laws and regulations that occur 
within its territory or territorial sea. That definition is, however, arguably 
too restrictive. Many State claims to contiguous zones assert the right to 
punish not only infringements committed within the territory or territorial 
sea of the State, but also infringements committed within the contiguous zone 
itself; in short, they claim both jurisdiction to enforce and jurisdiction to 
prescribe in the contiguous zone. However, the terms of the conventional 
definition adopted in the Handbook, whether construed literally or in the light 
of the travaux preparatoires of article 24 of the 1958 Territorial Sea Convention, 
grant only jurisdiction to enforce in the contiguous zone. 12 Moreover, the 
list of interests which may be protected in the contiguous zone, which is 
limited to customs, fiscal, immigration and sanitary matters, sits awkwardly 
with United States judicial practice. In cases such as the Taiyo Maru u and 
Gonzalez, 14 United States courts have taken a liberal view of the rights of 
coastal States to exercise jurisdiction beyond the territorial sea in what may 
loosely be termed as the contiguous zone, extending in terms of subject matter 
beyond the limits laid down in the 1958 and 1982 Conventions. It has, however, 
to be said that the more conservative line taken in the Handbook accords with 
that taken by the Geographer of the United States Department of State. 15 
In particular, the refusal of the Handbook to admit the validity of contiguous 
zones for security purposes 16 is consistent with the views of the Geographer. 17 

Perhaps the most significant divergence from the wording of the 
international conventions in this section of the Handbook concerns the 
Exclusive Economic Zone (EEZ). While the description of these 200-mile 
zones as "resource-related zones" might be regarded as a reasonable 
simplification of their nature, the description of the rights of third States in 
the zone is more controversial. It is stated that "in the EEZ all nations enjoy 
the right to exercise the traditional high seas freedoms of navigation and 
overflight, of the laying of submarine cables and pipelines, and of all other 
traditional high seas uses by ships which are not resource related." 18 That 
is not what the 1982 Convention says. Article 58 of the Convention expressly 
ascribes to third States in the EEZ only 



Lowe 113 

[T]he freedoms referred to in article 87 [on the freedoms of the high seas] of navigation 
and overflight and of the laying of submarine cables and pipelines, and other 
internationally lawful uses of the seas related to these freedoms, such as those associated 
with the operation of ships, aircraft and submarine cables and pipelines, and compatible 
with the other provisions of this Convention. 

The controversy centers upon the legality of activities such as weapons testing 
and naval exercises, and the laying of submarine monitoring systems (such 
as the SOSUS chains) in the EEZ, without the permission of the coastal State. 
One view, advanced in the Handbook, is that all such traditional high seas 
activities fall within the concept of "other internationally lawful uses of the 
seas related to" the freedom of navigation and pipe- and cable-laying set out 
in article 58, and that they are therefore lawful if committed in the EEZ of 
a third State, even if the State objects to such activities. 19 That view is not 
shared by all States. For example, Brazil, Cape Verde and Uruguay have 
asserted that various military activities, such as exercises involving the use 
of weapons, may not be conducted within the EEZ without coastal State 
consent. 20 States taking this position might argue that weapons testing and 
the deployment of underwater monitoring systems are neither expressly listed 
in article 58 as specific "high seas" freedoms preserved in the EEZ nor 
included within the category of "other internationally lawful uses of the seas 
related to" the specified freedoms. Naval exercises in an area of EEZ 
involving the use of guns, bombs and rockets, for example, might be said 
to be essentially different from and unrelated to the freedom of navigation, 
as may the sowing of unarmed mines. 21 The laying of SOSUS chains which 
monitor shipping movements in the area might equally be said to be distinct 
from normal pipe- and cable-laying activities, where the pipes and cables are 
used for transportation across the zone in question rather than for the 
collection of intelligence from it. Furthermore the exclusive right, of the 
coastal state, under article 60 of the 1982 Convention, to authorize and 
construct installations and structures in the EEZ which may interfere with 
the exercise of its rights in the zone offers an alternative basis for coastal 
interference. It might be said, for instance, that a SOSUS chain which 
stretches across the EEZ of a State so as to make it impossible for coastal 
State naval vessels to put to sea without detection by a third State interferes 
with the right of the coastal State to police and defend the waters adjacent 
to its coast. Finally, the coastal State might claim that any of the foregoing 
arguments are sufficient to create a doubt as to the respective scope of coastal 
and third State rights, and that a proper interpretation of article 59 (not 58) 
of the 1982 Convention resolves that issue "on the basis of equity and in the 
light of all the relevant circumstances, taking into account the respective 
importance of the interests involved to the parties as well as to the 
international community as a whole." 



114 Law of Naval Operations 

The merits of these opposing arguments have been canvassed elsewhere, 22 
and that task will not be repeated here. It should be clearly stated, however, 
that the views ascribed to Cape Verde have been expressed only by a tiny 
minority of States, and have been plainly rejected by rather more States 
(including the United States in the statement made at the signing of the Final 
Act of UNCLOS III) 23 and also by the overwhelming majority of 
commentators. It is, of course, entirely proper that the Handbook should refrain 
from raising what might reasonably be considered to be specious objections 
to the United States' view. However, it is equally proper that arguments 
which may yet be deployed against the United States should be noted in a 
commentary on the Handbook. If these disagreements over the interpretation 
of the 1982 Convention were to be resolved, that would do no more than 
clear the way for the even more difficult question of the extent to which 
the details of the Convention's provisions on the EEZ and other matters (and 
in particular article 59) have entered into customary law. The only point being 
made here is that the question of third-State rights in the EEZ is not quite 
as cut and dried as might appear from the Handbook. 

Briefly, the Handbook adopts the definition of the continental shelf set out 
in the 1982 Convention, according to which coastal State rights over the shelf 
extend, broadly speaking, to the limits of the geological continental margin 
or to 200 miles from the baseline, whichever is farther. 24 The provision is 
significant for many States, notably in the Pacific Ocean, whose geological 
shelves are much narrower than 200 miles. Some might question whether 
contemporary customary law does yet follow the 1982 Convention in 
automatically ascribing the seabed out to 200 miles to the coastal State, where 
the continental margin does not extend out to that distance, and where the 
coastal State has not claimed seabed rights out to 200 miles. However, the 
Handbook, if it departs at all from customary law, concedes rights which the 
U.S. might otherwise have reserved and is therefore unlikely to generate 
international friction. 

The final, minor, point on the definitions set out in chapter 1 of the Handbook 
concerns the assertion that in the absence of treaty constraints there is a 
freedom to use "international airspace (that over contiguous zones, exclusive 
economic zones, the high seas, and territory not subject to the sovereignty 
of any nation)." 25 It may be noted that this view has been challenged by some 
States. Argentina, Brazil and Uruguay are reported to have suggested that 
coastal States have the right to regulate by national legislation all aeronautical 
activities in their EEZ's. 26 However, the drafting history of the 1982 
Convention clearly supports the United States' view, and this is supported 
by a recent report to the International Civil Aviation Organization which 
concludes that there is no basis for the assertion that the 1982 Convention 
gives coastal States jurisdiction over overflight in the EEZ. 27 While this 
conclusion is certainly right, the attitude of Brazil and others, mirroring 



Lowe 115 

similar arguments concerning military uses of the EEZ, outlined above, should 
be seen as signalling that free overflight of the EEZ might not always and 
in all circumstances be regarded in practice as unquestionable by all states 
despite the true position in law. 28 

2. International Status and Navigation of Warships and Military Aircraft. The 

second chapter of the Handbook raises more acute issues of law touching upon 
naval operations. The definition of warships and military aircraft and the 
account of their immunities follows the terms of the 1958 and 1982 conventions 
on the Law of the Sea and is in general uncontroversial, although it should 
be noted that naval auxiliaries, while enjoying the same immunities as 
warships, are not within the definition of warships given in the Handbook or 
the conventions. 29 One aspect of the definition is, however, controversial. The 
Handbook adopts the view taken by the major maritime States that "[njuclear 
powered warships and conventionally powered warships enjoy identical 
international legal status." 30 That view is contested by some States. For 
instance, Djibouti is reported to require no advance notification or permission 
for the passage of warships through its territorial sea, but does require advance 
notification for the passage of nuclear-powered ships, and Egypt requires 
prior permission for the passage of nuclear-powered, but only prior notice 
of the passage of conventional, warships. 31 Furthermore, States are of course 
entitled in exercising discretions allowed to them by international law to draw 
a distinction between those warships which are powered by or carry nuclear 
materials and those which do not. Perhaps the clearest example of such a 
discretion concerns the admission of warships to ports and internal waters. 
As the Handbook notes, in the absence of some treaty arrangement to the 
contrary, warships and auxiliaries have no right of entry to the ports or 
internal waters of a foreign state. 32 The Treaty of Raratonga, which 
implemented an agreed move by certain Pacific States towards the 
establishment of a nuclear-free zone in a large area of the southern Pacific 
around and to the east of Australia, provides in article 5.2 (headed "Prevention 
of stationing of nuclear devices") that: 

Each party in the exercise of its sovereign rights remains free to decide for itself whether 
to allow visits by foreign ships and aircraft to its ports and airfields, transit of its airspace 
by foreign aircraft, and navigation by foreign ships in its territorial sea or archipelagic 
waters in a manner not covered by the rights of innocent passage, archipelagic sea lane 
passage or transit passage of straits. 33 

As discussions in recent years between the governments of New Zealand and 
the United States have shown, there is considerable potential for lawful 
discrimination by coastal States against warships carrying nuclear materials, 
at least in relation to the entry by such ships into ports and other internal 
waters. 34 While special provision may be made to regulate their passage, 35 
discrimination against ships carrying nuclear materials amounting to a denial 



116 Law of Naval Operations 

of passage through straits and archipelagic sea lanes does not appear to be 
lawful, nor does such discrimination in relation to rights of innocent passage 
simpliciter, although the scope of the right of innocent passage through the 
territorial sea has been clouded by the drafting of the 1982 Convention. 

Article 19 of the 1982 Law of the Sea Convention, which defines innocent 
passage, is one of the most problematic provisions of that Convention from 
the point of view of naval operations, although most of the problems operate 
at the level of legalistic arguments against the robust good sense of the 
Handbook. Article 19 opens, in its first paragraph, with the definition used 
in the 1958 Territorial Sea Convention: "Passage is innocent so long as it is 
not prejudicial to the peace, good order or security of the coastal State. Such 
passage shall take place in conformity with this Convention and with other 
rules of international law." 36 The second paragraph then states that: 

Passage of a foreign ship shall be considered to be prejudicial to the peace, good order 
or security of the coastal State if in the territorial sea it engages in any of the following 
activities: 

(a) any threat or use of force against the sovereignty, territorial integrity or political 
independence of the coastal State, or in any other manner in violation of the principles 
of international law embodied in the Charter of the United Nations; 

(b) any exercise or practice with weapons of any kind; 

(c) any act aimed at collecting information to the prejudice of the defence or security 
of the coastal State; 



(e) the launching, landing or taking on board of any aircraft; 

(f) the launching, landing or taking on board of any military device; 

(j) the carrying out of research or survey activities; 



(1) any other activity not having a direct bearing on 
passage. 

The problems of interpretation are manifold. The question whether the 
list of activities incompatible with innocence in article 19(2) is illustrative 
or exhaustive is clearly answered in the Handbook, which is surely correct 
in regarding the list as merely illustrative. 37 No answer is given to the further 
question, whether the ejusdem generis principle applies to the construction of 
article 19, requiring that there be some activity on a par with those listed in 
article 19(2) before innocence be lost. If that construction is correct, it would 
follow that the mere fact of the presence of a passing warship, not engaged 



Lowe 117 

in any "activity" of the sort listed in article 19(2), could not be the basis for 
a finding that its passage is non-innocent. Similarly, a law stating that the 
mere carriage on a merchant ship through the territorial sea of "cargo or 
any appliance or apparatus the use of which or persons who may constitute 
a threat against the sovereignty, territorial integrity or political independence 
of the Republic, shall be deemed to be not innocent ..." could not be 
lawful. 38 Under the 1958 definition, which now constitutes article 19(1) of 
the 1982 Convention, a coastal State could argue persuasively in some 
circumstances that the very presence of a warship or carriage of such cargo 
prejudiced its peace, good order or security. For instance, the mere passage 
of a superpower naval squadron close to the shore during hours of darkness 
at a time of substantial civil unrest or insurrection might well be perceived 
by a government having a precarious hold on power, but nonetheless 
recognized internationally as competent to act on behalf of the State, as 
prejudicing the peace and good order of the State; the government might 
accordingly determine that such passage is non-innocent. 39 That government 
might, furthermore, take the plausible view that the right of a coastal State 
to take "the necessary steps in its territorial sea to prevent passage which 
is not innocent" 40 means that it is entitled to use the lowest effective level 
of force available to it at the time to prevent passage, and it is conceivable 
that there might be nothing available between the extremes of a radio message 
and a Silkworm missile. If such a situation were to arise, and the commander 
of the naval force were to rely on a different interpretation of article 19, 
requiring that his warships engage in some "activity" additional to mere 
passage before they lose their innocence, this doctrinal dispute could quickly 
develop into an international incident. 

That does not exhaust the difficulties of interpreting article 19. Among 
the other difficulties which have been noted by commentators are the 
problems of article 19(2)(a): would the passage of a naval force threatening 
the use of force against a third State be a "threat . . . of force . . . in violation 
of the principles of international law embodied in the Charter of the United 
Nations," and would the passage of a naval force intended to assist a 
government put down an insurrection which is regarded in the United Nations 
as an attempt by the people of the country concerned to wrest the right of 
self-determination from an unwilling government fall within that provision, 
in either case resulting in the loss of innocence and possible political pressure 
on coastal States to attempt to prevent the passage? At what point, for 
instance, do monitoring coastal installations and broadcasts, soundings on the 
seabed or the testing of the salinity or temperature of the water amount to 
the collection of information to the prejudice of the defense or security of 
the coastal State, or to research or survey activities, proscribed by paragraphs 
(c) and (j)? Is the towing of a military device such as a towed sonar array, 
put overboard before entry into the territorial sea and taken aboard after 



118 Law of Naval Operations 

leaving the territorial sea, caught by paragraph (f)? And what "activities" 
are comprehended by paragraph (1)?: the movement of missiles onto launchers, 
or shadowing foreign submarines, or monitoring the seabed for military 
devices which might be emplaced there? Do proscribed activities 
automatically deprive passage of its innocence, even if there is no actual 
prejudice to the peace, good order or security of the coastal State? 

Here, as elsewhere in this paper, the response may be given that there was 
a clear understanding at UNCLOS III as to the interpretation which is to 
be given to the terms of the 1982 Convention. This is a perfectly adequate 
justification for the approach taken in the Handbook, which was not drafted 
as a watertight legal document but as an operational guide. But this is not 
an entirely adequate response to the problem of coping in practice with the 
complex underlying legal questions which might be raised by States 
determined to hold to interpretations of the law diverging from those held 
by the United States. 

Many of the provisions of the 1982 Convention, among them article 19, 
are finding their way into national legislation. 41 There is a real possibility 
that the interpretation of such national laws by national agencies, inevitably 
colored by the canons of interpretation applied in the relevant legal systems, 
may diverge from the interpretation of the 1982 Convention. Moreover, 
political considerations may induce States to interpret the words of the 
Convention itself in a manner different from that contemplated during the 
conference which spawned it — and if the world has learned anything from 
the U.S. legal system and its most skillful practitioners, it has surely learned 
that an agreement may be used ruthlessly against parties who neglect to ensure 
that the agreement actually says what they wanted it to say, and says no more. 
Most important, the underlying argument throughout this contribution to the 
debate is that States do differ in their interpretations of the law, and 
consequently the law is not always so clear and precise as to produce certainty, 
either concerning the rights and duties of the United States Navy or the likely 
attitudes and reactions of other States to the use of their waters by United 
States forces. This lack of certainty demands a certain circumspection in the 
exercise of the more controversial rights. It was, after all, the vigorous 
assertion by Libya of a claim to historic waters in the Gulf of Sirte, which 
most States would have regarded as wholly without legal merit, which 
produced fatal armed clashes with United States forces. 

There are two further points concerning innocent passage to be made. The 
first concerns the statement in the Handbook that innocent passage may be 
temporarily suspended in specified areas of the territorial sea when this is 
essential for the protection of the security of the coastal State. 42 That 
statement is consistent with the provisions of the conventions, 43 and with the 
position taken by the United States in protesting against attempts by Libya 
to close certain areas of its territorial sea permanently. 44 It sits less happily 






Lowe 119 

with State practice, which contains several examples of laws which have 
purported permanently to forbid navigation in specified areas adjacent to 
military dockyards and installations. 45 In practice, such claims do not appear 
to have given rise to international incidents; pragmatism and prudence may 
have prevailed over principle. 

It may seem strange to leave until last the fundamental question, whether 
warships enjoy the right of innocent passage at all. The well-known 
controversy over this question has been debated at length over the years since 
Elihu Root, sometime Secretary of State of the United States, addressed to 
the arbitral tribunal in the North Atlantic Coast Fisheries case his much-quoted 
(and subsequently, no doubt, much regretted) remark concerning the 
territorial sea: "Warships may not pass without consent into this zone, because 
they threaten. Merchant ships may pass and repass because they do not 
threaten. "^ In essence, his argument was that because warships are inherently 
threatening to the coastal State they are inherently non-innocent and outside 
the scope of the right of innocent passage. Many States adopt a similar 
position. Nine or so require prior notification as a condition of passage, and 
a further twenty-eight or so require prior authorization, the States concerned 
being drawn from all the major power blocs and regions. 47 This position is 
not, however, the one taken by major maritime States such as the United 
States and the United Kingdom, both of which assert a right of innocent 
passage for warships without prior notification or authorization. Nonetheless, 
few international incidents have occurred, largely because of the practice of 
giving low-level and informal notice of passage on the occasions when naval 
vessels are sent into the territorial seas of States requiring notification or 
authorization, which may be followed by a purported "authorization" not 
sought by the passing ships: such ambiguous procedures save honor on both 
sides. 48 Important as the controversy is as an academic matter, in practice 
the world has lived more or less happily with the contradictory interpretations 
of the law now for many years, and the assertion of the right of innocent 
passage for warships in the Handbook 49 is unlikely to upset this modus vivendi. 

One of the most critical elements in the package deal worked out at 
UNCLOS III was the safeguarding of rights of passage through strategic 
straits and archipelagic sea lanes in return for the acceptance of extended 
coastal State territorial seas and jurisdiction over the economic resources of 
the seas off their coasts. The parts of the Handbook dealing with rights to transit 
such waters are therefore of particular importance. 

The 1982 Convention itself establishes a right of transit passage through 
international straits and a substantially identical right of archipelagic sea lanes 
passage through archipelagic sea lanes, which are much broader than the rights 
of innocent passage enjoyed in the territorial sea. 50 Transit passage and 
archipelagic sea lanes passage do not depend upon a showing of "innocence;" 
they include a right of overflight, which does not exist over the territorial 



120 Law of Naval Operations 

sea; they appear to allow submerged passage by submarines, which is 
forbidden in the case of innocent passage; and they impose strict limitations 
upon the regulatory competence of the coastal State over ships exercising 
the rights of passage. Here the status of the 1982 Convention is of critical 
importance. Iran, for example, has stated that the right of transit passage is 
"contractual," existing only for parties to the 1982 Convention, and 
presumably only once the Convention enters into force. 51 

There is little support evident for the Iranian position, and much that can 
be said against it. It is not the view taken in the Handbook or by the major 
maritime States. Thus, when the United Kingdom extended its territorial sea 
to twelve miles in 1987, it announced, albeit without using the term "transit 
passage," that rights equivalent to those established under the conventional 
transit passage regime would be accorded to ships sailing through the Straits 
of Dover and certain other straits around the United Kingdom. 52 Moreover, 
it is arguable that rights wider than the right of innocent passage existed 
through international straits under customary international law even before 
the adoption of the 1982 Convention. In support of this view it has been said 
that transit through and overflight of certain key straits such as Gibraltar 
has long been conducted in a manner which, like transit passage itself, is more 
akin to high seas freedom of navigation than to innocent passage. Furthermore, 
it might be said, this earlier practice offers an explanation for the rapid 
acceptance of the transit passage provisions into the Law of the Sea 
Convention and, perhaps more significantly, for the inclusion in the 1979 
Treaty of Peace between Egypt and Israel of a right of "unimpeded and non- 
suspendable freedom of navigation and overflight" for all States through the 
Straits of Tiran and Gulf of Aqaba. 53 

Against this view it must be said that the evidence on passage through straits 
is by no means always clear. For instance, in the case of the Straits of Gibraltar, 
until the 1980s the United States recognized only a three mile territorial sea 
and accordingly acted on the basis that there was a high seas corridor through 
the strait — an assumption which, if correct, would render the exercise of 
freedoms of navigation and overflight through the strait uncontroversial, and 
preclude the counting of that practice towards the establishment of a right 
to exercise such freedoms through straits constituted entirely by the territorial 
seas of the littoral States. It should also be noted that several littoral States 
have stated that they do not recognize the right of transit passage in customary 
international law. The 1971 Declaration made by Indonesia, Malaysia and 
Singapore is but one among many examples. 54 

Moreover, there are certain technical problems with the view favoring the 
wider right. It is difficult to see how States such as the United States and 
United Kingdom, parties to the 1958 Territorial Sea Convention which, in 
article 16(4), gives merely a non-suspendable right of innocent passage 
through international straits, can claim wider rights as against other parties, 



Lowe 121 

such as Malaysia and Spain, which border international straits. This problem 
is exacerbated by the fact that the 1958 Territorial Sea Convention contains 
no provision for its termination or denunciation, and the United Kingdom 
has recorded the view (in relation to a purported denunciation by Senegal 
of, among others, the Territorial Sea Convention) that denunciation is not 
possible. 55 There is, therefore, some difficulty in explaining how the parties 
to the Territorial Sea Convention can escape the restrictive rights of passage 
through straits which that Convention sets out. 

It might be argued that only where a treaty intends to exclude wider 
customary law rights can the latter be curtailed by a restrictive treaty 
provision, and that this is not the case in relation to the law on passage through 
straits. But the difficulty of adducing unequivocal evidence to sustain claims 
to a customary law right analogous to transit passage or freedom of navigation 
through international straits which pre-dates the transit passage provisions 
of the 1982 Convention must cast serious doubts upon the legal validity of 
such claims. The better course is to argue that the transit passage provisions 
have passed into customary law since their elaboration at UNCLOS III so 
as to modify the pre-existent treaty rights under the 1958 Convention, and 
to seek to establish that position on the basis of State practice, including the 
assertion of such rights by the United States Navy, among others. 

The most plausible explanation of this process might lie in the doctrine 
of desuetude, or disuse. It is said that for desuetude to operate, four 
requirements must be satisfied: 1) frequently repeated violations of the treaty, 

2) which are imputable to a government and not merely to individuals, and 

3) which have no reasonable explanation (other than as a violation of the 
treaty), and 4) which have not been negated by the protests of the injured 
party. 56 It is not clear, however, that the body of action and acquiescence 
is yet sufficiently persuasive to justify the conclusion that the provisions of 
the 1958 Convention have been swept away. It may be unwise to seek to force 
modifications of treaty rights which States appear willing to accept within 
any doctrinal straitjacket. The United Kingdom at one stage rejected the 
validity of archipelagic baselines claimed by Indonesia, another party to the 
Territorial Sea Convention, but it would now accept the validity of such 
baselines drawn in conformity with the provisions of the 1982 Convention. 
This position should perhaps best be seen as illustrating either the proposition 
that treaty obligations can be modified, with the agreement of the parties, 
by subsequent changes in customary law, or the proposition that States can 
choose to waive violations of their treaty rights. Whether this should be 
described as an application of the doctrine of desuetude, or as a consensual 
modification of treaty rights, or as some other form of development in the 
law, is less important than the fact of the change. If rights of transit passage 
are asserted often enough, and are not seriously challenged, such rights will 
become established in law. 



122 Law of Naval Operations 

If the claim is accepted that customary law includes a right similar to the 
conventional right of transit passage, further problems concerning transit 
passage remain. The Handbook states that the right of transit passage obtains 
in "straits used for international navigation through the territorial sea 
between one part of the high seas or an exclusive economic zone and another 
part of the high seas or an exclusive economic zone. " 57 There is nothing wrong 
with that statement, which follows the wording of article 37 of the 1982 
Convention. The problem lies in determining what it means in practice, and 
the Handbook offers no guidance. Differences have arisen between the United 
States and other States over whether a particular strait falls within the 
category of "straits used for international navigation." For example, the 
United States has argued that the Northwest Passage through the Canadian 
archipelago is an international strait, but Canada has contested this, arguing 
that the waters in question are historic internal waters through which passage 
is subject to Canadian control and regulation. It might also be argued that 
the volume of traffic through the strait is so small as to disqualify it from 
the category of straits used for international navigation. 58 In such cases the 
account of transit passage given in the Handbook is of limited value: the critical 
factor is the political decision on the vigor with which the United States 
wishes to press its view and assert the rights which it claims in relation to 
such disputed straits. 

Despite the admirable clarity of the definition of transit passage in the 1982 
Convention, there are difficulties in determining its precise scope, highlighted 
by the manner in which the relevant rules are presented in the Handbook. The 
assertion that submarines may transit submerged 59 is commonly accepted, 
although this right is not spelled out in the 1982 Convention. It is an inference, 
albeit a reasonable one, from article 39(1 )(c) of the 1982 Convention, which 
requires passing vessels to refrain from activities other than those incident 
to their "normal modes of continuous and expeditious transit" which, it is 
said, can only mean that submarines may transit submerged. More 
troublesome is the statement that warships may engage in "formation 
steaming and the launching and recovery of aircraft." 60 Formation steaming 
might be acceptable as a normal precaution for the security of the vessels 
concerned, but the 1982 Convention is silent on the question of launching 
and recovering aircraft. The right of overflight alone does not seem sufficient 
warrant for such activities, which are markedly different in nature from 
overflight between points lying outside the territorial sea of the littoral States, 
and the justification must be found in the nature of the right of transit passage 
itself. Whatever understandings may have been reached at UNCLOS III, these 
aircraft rights are not included in the Convention's actual provisions, and their 
validity will turn largely upon their unopposed exercise in practice, 
constituting an "agreed interpretation" of the Convention for the parties and 
a rule of customary law for non-parties. 



Lowe 123 

It should also be noted that there is some doubt as to whether it is true 
in all circumstances that transit passage may not be suspended for ships 
engaged in armed conflict with a third State. 61 It is certainly true that the 
right of transit passage does not depend upon any criterion of innocence. 
However, it is stated, in article 38(3) of the 1982 Convention, that "[a]ny 
activity which is not an exercise of the right of transit passage through a 
strait remains subject to the other applicable provisions of this Convention." 
This raises the question, what "activities" put a vessel outside the scope of 
transit passage? At one extreme, it might be argued that any activity other 
than continuous and expeditious transit of the strait would have this effect. 
On the other hand, the duty of vessels engaged in transit to refrain from the 
threat or use of force against the littoral States is not included as an element 
of the definition of the right of transit passage in article 38, but as an ancillary 
duty in article 39 of the 1982 Convention, thus suggesting that there are 
activities other than mere transit which, though unlawful, do not deprive the 
passage of its transit character. Here again, the correct interpretation of the 
law will have to be constituted by State practice. 

Undoubtedly, the major naval powers will choose to see transit passage 
as a right close to the high seas freedom of navigation, and will tend to argue 
that whatever a vessel in transit through the strait might do while it is in 
transit the right of passage cannot be denied, and any complaint of unlawful 
behavior must be pursued through the normal channels for settling 
international disputes. Of course, a vessel not engaged in transit but, say, 
deliberately stationed at anchor in the strait (the anchoring not being 
incidental to its passage) would fall outside the right of transit passage; and 
because it would by definition be in the territorial sea it would fall under 
the rules applicable to that zone, including the rules allowing the coastal State 
to use reasonable force to prevent non-innocent passage. 

The foregoing remarks on transit passage apply equally to the provisions 
in the Handbook concerning the right of archipelagic sea lanes passage. 62 A 
further problem arises from the position taken by the Philippines, which stated 
on signature of the 1982 Convention that 

The provisions of the Convention on archipelagic passage through sea lanes do not nullify 
or impair the sovereignty of the Philippines as an archipelagic State over the sea lanes 
and do not deprive it of authority to enact legislation to protect its sovereignty, 
independence, and security. 

The concept of archipelagic waters is similar to the concept of internal waters under 
the Constitution of the Philippines, and removes straits connecting these waters with 
the economic zone or high sea from the rights of foreign vessels to transit passage for 
international navigation. 63 

One of the main aims of the provisions on archipelagic sea lanes passage was, 
of course, to "impair" the sovereignty of the littoral State, in the sense of 
limiting the right of the State to impose its laws on or restrict the movements 
of passing ships, and to give such ships transit rights through the major 



124 Law of Naval Operations 

established international seaways crossing the archipelago substantially 
identical to transit passage rights; and there is no doubt that this is precisely 
what the 1982 Convention does. The Philippine position appears absurd, but 
it is not entirely devoid of a certain superficial plausibility. It is true that 
the 1982 Convention does not detract from the rights of any State to act in 
self-defense under the provisions of article 51 of the United Nations Charter, 
and there is no obvious reason why an archipelagic State party to the 1982 
Convention should not enact legislation to that effect, so long as it does not 
attempt to regulate passage through the sea lanes in a manner inconsistent 
with the 1982 Convention provisions. That said, it is difficult to believe that 
the Philippine statement was seeking merely to establish this banal 
proposition. It is also true that in the section of the 1982 Convention dealing 
with straits, the transit passage provisions do not extend to straits connecting 
the high seas or EEZ with the territorial or internal waters of a State. 
Furthermore, the transit passage regime, stricto sensu, does not apply to passages 
through archipelagic waters, although the provisions on archipelagic sea lanes 
passage, which are very similar to the transit passage provisions, do so apply. 
But again, it is hard to believe that these rather inconsequential points 
motivated the Philippine statement. It is scarcely surprising that several 
governments have registered forceful objections to the Philippine statement, 
characterizing it as an attempt to evade the obligation to accord rights of 
archipelagic sea lanes passage to foreign ships and aircraft. 64 If nothing else, 
the declaration offers a fine illustration of the danger of States adopting 
tortured interpretations of the 1982 Convention whenever it might suit them 
to do so. 

Apart from the question of Flight Information Regions and Air Defense 
Identification Zones, which fall outside the scope of this paper but which 
have led to serious controversy in the past, 65 there are three further matters 
in the second chapter of the Handbook which call for comment and which 
are not dealt with elsewhere in this paper: they are the establishment of closed 
areas of the high seas, and certain particular problems arising in the Arctic 
and Antarctic. The high seas point can be dealt with swiftly. The Handbook 
states that 

Any nation may declare a temporary closure or warning area on the high seas to advise 
other nations of the conduct of activities that, although lawful, are hazardous to 
navigation and/or overflight. . . . Ships and aircraft of other nations are not required 
to remain outside a declared closure or warning area, but are obliged to refrain from 
interfering with activities therein. 66 

Although it has sometimes been asserted that there is a right to close off areas 
of the high seas temporarily, using force to prevent the entry of foreign ships, 
the statement in the Handbook, based on the freedom to use the high seas with 
due regard for the interests of other high seas users, seems to this writer to 



Lowe 125 

be as accurate as it is succinct, and to be an admirably clear expression of 
the prevailing law. 

The passages concerning the Arctic and Antarctic will also appear 
unobjectionable to most readers. However, the view that there is a high seas 
freedom of navigation and overflight on, over, and under the waters and 
icepack of the Arctic would not pass undisputed by all States. 67 As was 
mentioned above, Canada, for instance, has claimed certain waters in the 
Canadian Arctic archipelago as historic internal waters — a claim which, if 
valid, would necessarily oust the high seas freedoms in the areas concerned. 
Similarly, the United States position concerning Antarctica is premised upon 
its refusal to recognize any of the territorial claims on that continent: such 
claims have been made by Argentina, Australia, Chile, France, New Zealand, 
Norway, and the United Kingdom. In practice, however, international 
cooperation over the management of Antarctica has been and continues to 
be remarkably successful, and there is little danger of any serious international 
difficulties arising from the non-recognition of the various claims. 

3. Protection of Persons and Property at Sea. From this point onwards in the 
Handbook, matters become much less clear. In most cases, where "pure" law- 
of-the-sea questions become enmeshed with questions concerning the legality 
of the use of force to protect persons, property or rights, one is faced with 
an array of possible justifications, one shading off into another so 
imperceptibly that it is often of little practical value to seek to determine 
the limitations of any particular justification. This is particularly true of the 
right of self-defense. It must be said at this point that the present paper does 
not attempt an exhaustive analysis of this unsettled area of the law. Such a 
task demands a paper in itself. With that proviso, an attempt is made in the 
following paragraphs to identify the main areas of controversy. 

The first such area arises in the context of piracy. The Handbook gives a 
plain account of the rules on the repression of piracy, adhering for the most 
part to the wording of the relevant provisions of the 1958 High Seas 
Convention and the 1982 Law of the Sea Convention. 68 Thus, piracy is 
confined to cases of illegal acts of violence, detention or depredation 
committed for private ends by the crew or passengers of a private ship or 
aircraft in or over international waters against another ship or aircraft or 
persons and property on board. Specifically excluded from this definition are 
cases of mutiny and passenger hijacking, which do not constitute piracy 
because they do not involve acts committed by one ship or aircraft against 
another. 69 The definition is a matter of international law. Individual States 
may choose to enact municipal legislation describing hijackings as "piracy," 
but such acts would not constitute piracy as a matter of international law 
and so would not be subject to the exceptional jurisdictional rules allowing 



126 Law of Naval Operations 

any State to seize pirate ships on the high seas. 70 This point is considered 
further below. 

This scrupulous adherence to the terms of international conventions breaks 
down in the provisions concerning the pursuit of pirates. The Handbook states 
categorically that 

Pursuit of a pirate vessel or aircraft through or over international straits overlapped 
by territorial waters or through or over archipelagic sea lanes may proceed with or 
without the consent of the coastal nation or nations, provided the pursuit is expeditious 
and direct and the transit passage rights of others are not unreasonably constrained in 
the process. 71 

This view is probably based on the understanding that the purpose of transit 
or archipelagic sea lanes passage is irrelevant to its legality, and that only 
the manner of such passage is so relevant. That interpretation may draw support 
from the ruling of the International Court of Justice to similar effect in the 
context of innocent passage in the Corfu Channel case. 72 Nonetheless, it does 
not necessarily overcome the objection that pursuit may constitute an 
"activity" additional to mere passage which would, under articles 39(l)(c) 
and 54 of the 1982 Convention, take the pursuing ship outside the scope of 
transit or archipelagic sea lanes passage. The United States view is, 
presumably, that pursuit is not another "activity" and that it does not result 
in the loss of transit rights. But if that be so, it is not immediately apparent 
why the same claim to a right to pursue through straits and archipelagic sea 
lanes is not made in the context of hot pursuit. The part of the Handbook dealing 
with that topic, however, states that the right of pursuit ceases as soon as 
the ship pursued enters its own or a third State's territorial sea. 73 While it 
may be thought that no State could wish to object to the pursuit of pirates, 
as the common enemies of mankind, some coastal States may yet be jealous 
of their sovereignty. If that point is unsettled, it is perfectly plain that the 
pirate vessels may not be seized in or over territorial or archipelagic waters. 
Such seizure would, if committed without the consent of the coastal State 
concerned, undoubtedly violate that State's sovereignty, and it is unfortunate 
that the Handbook does not make this clear. 

As was noted above, the definition of piracy excludes mutinies and 
passenger hijackings. However, as the Handbook notes in a later section, 

International law, embodied in the doctrines of self-defense and protection of nationals, 
provides authority for the use of proportionate force by U.S. warships and military 
aircraft when necessary for the protection of U.S. flag vessels, U.S. citizens (whether 
embarked in U.S. or foreign vessels), and their property against unlawful violence in 
international waters. 74 

That claim, evident in the United States' action in the Achille Lauro affair, 75 
puts in issue the current ambit of the right of self-defense and allied rights. 
Although the right to use force in peacetime to protect national flag vessels 
might be well established, the use of force to protect nationals on foreign 



Lowe 127 

flag ships is much more controversial. 76 The Handbook notes the primary 
responsibility of the coastal State in internal, archipelagic and territorial 
waters for the protection of all persons and vessels lawfully within its 
territory, and cautions against interference with the exercise of jurisdiction 
by such coastal States. 77 But even in relation to action on the high seas or 
in the EEZ, it is at the very least arguable that forcible action to protect 
U.S. citizens on foreign flag ships cannot lawfully be taken unless the flag 
State concerned has requested or consented to such use of force, or is in 
violation of its duty to take all reasonable steps to secure the safety and release 
of the victims, or immediate action is required to protect human life. Indeed, 
those criteria are quite properly set out in the Handbook as governing the use 
of force to protect foreign flag vessels and foreign persons. 78 

The Handbook is, understandably, somewhat reticent on the detailed rules 
concerning the use of force to protect U.S. interests. It refers to the peacetime 
rules of engagement, which are "carefully constructed to ensure that the 
protection of U.S. flag vessels and U.S. citizens and their property at sea 
conforms with U.S. and international law and reflects national policy/' 79 It 
may be that those rules of engagement impose strict limitations on the 
circumstances in which such protection is to be forcibly asserted. Without 
sight of them, there is little more that can be said by way of a critique of 
the position adopted in the Handbook. 

4, Safeguarding of U.S. National Interests in the Maritime Environment. The 

fourth and final chapter in the part of the Law of Peacetime Naval Operations 
sets out the obligations under the United Nations Charter to use peaceful 
means to settle international disputes and to refrain from the threat or use 
of force against the territorial integrity or political independence of States 
or in any other manner inconsistent with the purposes of the United Nations, 
with the exception of the right to use force in self-defense preserved by article 
51 of the Charter. It also emphasizes the requirements of necessity and 
proportionality which attend the use of force in self-defense. 

The scope of the right of self-defense is, of course, one of the most debated 
issues in contemporary international law, and the comments offered here do 
not approach an exhaustive nor even comprehensive survey of the subject. 
As the debate continues, the tendency is for official formulations of the 
doctrine to retreat into the Delphic wisdom of the Caroline formula, and the 
Handbook is no exception to this tendency. Self-defense is dealt with in three 
paragraphs. 80 The first sets out the right in general terms, and cites a number 
of examples of protective action "premised on the broader principle of self- 
defense," among them the Cuban quarantine of 1962; the second lays claim 
to a right of anticipatory self defence; and the third, in effect, says that all 
the important rules are to be found outside the Handbook, in the peacetime 
Rules of Engagement. 



128 Law of Naval Operations 

The first of these paragraphs raises the question of the kinds of action 
justified under the doctrine of self-defense. The Cuban quarantine focused 
attention on the difficulties of using self-defense against threats which are 
neither threats of the use of armed force, nor threats of immediate and 
unlawful injuries to a State. Indeed, as Abram Chayes recalls in his excellent 
study of the Cuban Missile Crisis, even within the United States 
administration there were considerable misgivings concerning the 
applicability of the doctrine in that context, and attempts were made to rest 
the justification of the action on the supposed "authorization" of the action 
by the Organization of American States. 81 These difficulties have been 
increased by the decision of the International Court in the Nicaragua case, in 
which the majority (in passages open to serious criticism) appeared to hold 
that the right of self-defense exists only in the face of an armed attack, and 
not acts which do not amount to an armed attack. 82 It is inconceivable that 
the Court which delivered the Nicaragua judgment should have held the Cuban 
quarantine to be a lawful exercise of the right of self-defense. The Handbook's 
assertion that the quarantine "has been widely approved as a legitimate 
exercise of the inherent right of individual and collective self-defense" may 
be true. 83 It is also true, but not stated, that the quarantine has been widely 
criticized as failing to meet the requirements for the invocation of that 
doctrine, and that such criticisms have received powerful support from the 
Nicaragua judgment. 84 

It requires but little prescience to see that, post-Nicaragua, States are likely 
to place greater reliance on the right of anticipatory self-defense, consideration 
of which was expressly excluded from the International Court's judgment 
in that case. 85 Although reputable commentators have questioned the 
existence of a right of anticipatory self-defense, their views are bewildering. 
One wonders what, exactly, they think defense is. Certainly, the idea that 
an attack must be suffered before a right of defense arises makes no sense. 
It is not the preceding attack that justifies the use of force, for that would 
be an essentially punitive response. The justification lies in the use of force 
to ward off a continuation of the attack, or further attacks. In that sense, 
the existence of an actual attack can have only an evidential role, putting 
beyond doubt the hostile intent of the aggressor. But if that intent can be 
otherwise established (as it must be if anticipatory action is to be lawful, since 
the right is one of anticipatory self-defense, not preemptive attack), there 
seems no earthly reason why the right of self-defense cannot be invoked. 
Regrettably, but for obvious reasons, the Handbook does not detail the 
circumstances in which hostile intent will be presumed by the United States 
Navy. Such matters are dealt with in the Rules of Engagement. There is little 
point in speculating on what those rules might be. However, it may be helpful 
to offer three general comments. 



Lowe 129 

First, the Handbook follows the Caroline formula and requires that there be 
a "clear necessity that is instant, overwhelming, and leaving no reasonable 
choice of means." 86 The word "reasonable" is important. It is difficult to 
believe that Professor O'Connell was right in suggesting that "in the exercise 
of sea power one must expect to sustain an initial casualty before going into 
action under the cover of self-defense." 87 Such an attitude towards the 
determination of hostile intent cannot in all circumstances be realistic. If, for 
instance, the "initial casualty" suffered by the United Kingdom in the 
Falklands conflict had been one of its aircraft carriers, it is quite possible that 
the British action would have had to be aborted. If losing an initial casualty 
means losing the conflict, the right of self-defense can only mean that there 
is a right to use force to avert the initial casualty. 

Second, the difficulty of establishing proportionality in the context of self- 
defense should be noted. To return to the Falklands example, the threat 
presented by the General Belgrano itself to the British fleet was limited; the 
threat presented by the entire Argentinian Navy was considerable. If sinking 
the General Belgrano was arguably a disproportionate response to the threat 
which it alone presented, could it not be argued also that the sinking was 
an economical and proportionate use of force to avert the threat presented 
by the entire Argentinian Navy (which did not, indeed, further threaten the 
British task force after the sinking)? Proportionality would be a beautifully 
clear test, if only it were clear what has to be counted in establishing the 
proportions. 

A third, and related, point is that the right of anticipatory self-defense may 
exist in circumstances which appear close to reprisals. For example, the attack 
by the United States on an Iranian oil platform on October 19, 1987, three 
days after the United States merchant ship Sea Isle City had been hit by an 
Iranian missile, appears at first sight to be an act of reprisal, since the attack 
on the Sea Isle City (and other vessels around the same time) was over and 
done with. But here, as in other circumstances where there is a "pinprick" 
pattern of repeated attacks, each relatively limited in scope, it is surely 
legitimate to take action in order to avert future attacks of the same kind 
if (and only if) satisfactory evidence of the likelihood of future attacks can 
be adduced. 88 

The situation in the Gulf underlines the swiftness with which States can 
move from a situation of dealing with isolated violations of their rights to 
outright armed conflict. One of the most important passages in this chapter 
of the Handbook is the observation that, "[i]n recent years . . . the concepts 
of both 'war' and 'peace' have become blurred and no longer lend themselves 
to clear definition. Consequently, it is not always possible, or even useful, 
to try to draw neat distinctions between the two." 89 That observation is 
critical to an understanding of the significance of the second part of the 



130 Law of Naval Operations 

Handbook, which deals with the Law of Naval Warfare, and to that part 
attention will now be turned. 

The Law of Naval Warfare 

5. Principles and Sources of the Law of Armed Conflict Nothing which is said 
subsequently must be allowed to detract from one crucial point which goes 
to the very heart of the defensibility of all of this part of the Handbook. Put 
simply, it is by no means clear that the traditional Laws of War retain their 
validity today. This point arises clearly in chapter five, which details the 
principles and sources of the "Law of Armed Conflict." The statement of 
principles, based on the use of minimum force and the distinction between 
combatants and non-combatants, is unremarkable. The statement of the 
sources from which those principles are distilled raises one of the most 
important controversies in contemporary international law. 

The customary Law of War is treated with appropriate caution: 

It is frequently difficult to determine the precise point in time at which a usage or practice 
of warfare evolves into a customary rule of law. In a period marked by rapid 
developments in technology, coupled with the broadening of the spectrum of warfare 
to encompass insurgencies and state-sponsored terrorism, it is not surprising that nations 
often disagree as to the precise content of an accepted practice of warfare and as to 
its status as a rule of law. This lack of precision in the definition and interpretation 
of rules of customary law has been a principal motivation behind efforts to codify the 
law of armed conflict through written agreements (treaties and conventions). 90 

It is the reference in the last sentence to treaties and conventions which gives 
rise to difficulty. The' Handbook proceeds to list the principal international 
agreements "reflecting the development and codification of the law of armed 
conflict. ,, The list is headed by certain of the Hague Conventions of 1907, 91 
which exemplify the traditional Laws of War. None of those Hague 
Conventions has more than about one-fifth of the States which presently 
constitute the world community as parties, and many of the parties have 
entered reservations to parts of those Conventions; and although there are 
isolated examples of States notifying in recent years the continued 
applicability of some of them, 92 there must be considerable doubt as to the 
extent to which the Conventions represent current law. 

These doubts arise from a number of specifically legal considerations (quite 
apart from the doubts created by technical developments in weaponry and 
from widespread failures to comply with some of the supposed rules, such 
as those in the 1936 London Submarine Protocol) 93 which are familiar and 
can be briefly stated. First, there is the argument that since the outlawing 
of the use of force by the United Nations Charter, no state of "war" can 
lawfully arise. Accordingly the criterion for the applicability of the Laws 
of War cannot be met, the legality of all uses of force henceforth beingjudged 
by reference to the terms of the Charter. The Handbook disposes of this 



Lowe 131 

argument by stating that "[wjhether or not resort to armed conflict in a 
particular circumstance is prohibited by the United Nations Charter (and 
therefore unlawful), the manner in which that armed conflict is conducted 
continues to be regulated by the law of armed conflict." 94 That proposition 
might command widespread assent, but does not wholly resolve the argument. 
Some of the provisions of the Hague Conventions, and rather more of the 
traditional customary Law of War, cannot easily be reconciled with the 
Charter. For example, article 1 of Hague Convention XI concerning the right 
of capture in naval war assumes the legality of the blockade of ports. On 
the other hand, the United Nations has taken the view that blockade 
constitutes an act of aggression, and that no consideration of whatever nature, 
whether political, economic, military or otherwise, may serve as a 
justification for aggression. 95 Blockade could only be justified as an act of 
self-defense, but in that case the requirements of necessity and proportionality 
inherent in the doctrine of self-defense create substantial problems for the 
interdiction of third-State shipping by means of blockade. 96 Plainly, the Laws 
of War must be read in the light of the Charter, and the Charter itself requires 
that it prevail in the case of any inconsistency between them. 97 Only uses 
of force authorized by the United Nations or kept within the confines of the 
right of self-defense are lawful, and the rights and duties of States under the 
traditional Laws of War must be regarded as having been modified 
accordingly. 98 

The second consideration is that the Laws of War, as will be seen, conflict 
in many particulars with the rules set out in the 1958 and 1982 conventions 
on the Law of the Sea. 99 This conflict arises even at the most general level. 
Article 88 of the 1982 Convention reserves the high seas (and, by virtue of 
article 58, the EEZ) for peaceful purposes. Article 301 of the Convention 
requires States using the seas to refrain from the threat or use of force against 
the territorial integrity or political independence of any State or in any other 
manner inconsistent with the principles of international law embodied in the 
Charter of the United Nations. The combined effect is no more, and certainly 
no less, than to tie the legality of uses of the seas to compliance with the 
constraints on the use of force under the Charter. The natural inference is 
that the use of force, whether or not authorized under the Laws of War, 
could only be lawful under the 1982 Convention to the extent that it is 
justifiable under the Charter — i.e., for practical purposes in this context, 
justifiable according to the rules on self-defense, embodied in article 51 of 
the Charter. 

This in turn raises the question whether the 1982 (or 1958) conventions apply 
in case of armed conflict. While none of the 1958 conventions on the Law 
of the Sea expressly so provide, it is true that the International Law 
Commission, which prepared draft articles on the subject for consideration 
by the Geneva Conference, intended the articles to apply in time of peace. 100 



132 Law of Naval Operations 

The 1982 Law of the Sea Convention is similarly silent, although here, too, 
it was understood that the Conference was concerned with the peacetime 
Law of the Sea. If the rules on self-defense are regarded as governing all uses 
of force, no problem arises, since the right of self-defense will (almost) always, 
as a matter of law, allow the use of force in violation of treaty obligations. 101 
But if the Law of War is regarded as still operative, there arises the 
considerable problem of knowing when the peacetime conventional rules are 
overridden by the Law of War. This problem might be answered for practical 
purposes for the U.S. Navy by the invocation of the wartime rules of 
engagement, 102 but this does not dispose of the legal question: might the 
wartime rules of engagement, as a matter of international law, be incorrectly 
invoked? 

That said, it must be admitted that the United States is not alone in referring 
to the old Laws of War as still operative. 103 

The significance of these issues can be illustrated with a single example. 
The traditional Law of War allows neutral coastal States to deny belligerents 
passage through the territorial sea. The 1958 and 1982 Conventions give a 
right of innocent passage, and even though that right may be suspended 
temporarily for security reasons, such suspension may not discriminate in fact 
or form between foreign ships. 104 May a coastal State deny passage to 
belligerent ships, but not to non-belligerent foreign ships? If so, at what point 
does the right to override the provisions of the Law of the Sea conventions 
arise, in cases where there is no express declaration of war or recognition 
of belligerency? Does it make any difference if either or both (or all) of the 
belligerents claim to be using force in self-defense, and does it further modify 
the position if the coastal State, or States generally, or the United Nations, 
or the International Court, have recognized that such claims of self-defense 
are legally valid? Would the coastal State's rights to suspend passage be any 
different if it sought to justify its own action under the rules of self-defense — 
would that permit a discriminatory denial of passage to the belligerents alone? 
There are no easy answers to such questions, and no answers at all which 
do not depend in large measure upon the position which is adopted concerning 
the relationship of the United Nations Charter, the Laws of War, and the 
peacetime Law of the Sea. 

It is, moreover, apparent that there is no settled international consensus 
upon what that relationship might be. The issue is rarely addressed directly, 
but divergences in States' views may be inferred from their practice. To take 
one further example to contrast with the approach adopted in the Handbook, 
in the recent Iran-Iraq conflict, the United Kingdom clearly tied the question 
of the legality of the practice of the belligerent States in visiting and searching 
neutral flag merchant ships in the Persian/Arabian Gulf to article 51 of the 
United Nations Charter: 



Lowe 133 

[UJnder article 51 of the United Nations Charter a state such as Iran, actively engaged 
in an armed conflict, is entitled in exercise of its inherent right of self defence, to stop 
and search a foreign merchant ship on the high seas if there is reasonable ground for 
suspecting that the ship is taking arms to the other side for use in the conflict. This 
is an exceptional right: if the suspicions prove to be unfounded and if the ship has not 
committed acts calculated to give rise to suspicion, then the ship's owners have a good 
claim for compensation for loss caused by the delay. 105 

The language is permeated by the essence of self-defense: the particular ship 
must be suspicious; the suspicion must be one of carrying arms; and, must 
be one of carrying them to the other side. The right of action is tightly bound 
by the requirements of necessity and the imminence of the threat against 
which the State is defending itself. 

Contrast that statement with the approach adopted in the Handbook: 

Visit and search is the means by which a belligerent warship or belligerent military 
aircraft may determine the true character (enemy or neutral) of merchant ships 
encountered outside neutral territory, the nature (contraband or exempt "free goods") 
of their cargo, the manner (innocent or hostile) of their employment, and other facts 
bearing on their relation to the armed conflict. 106 

The whole approach is quite different, the Handbook not ruling out the 
systematic, precautionary visit and search of foreign merchant ships. Indeed, 
the two passages illustrate what appears to be a significant difference between 
the approaches of the United States and the United Kingdom. Both in the 
Falklands conflict in 1982 and in its reactions to the recent Gulf conflict, the 
United Kingdom has striven to avoid any recourse to the language of the 
traditional Law of War or any other suggestion that those rules are applicable, 
and has sought to pin all questions of the legality of armed action to the 
doctrine of self-defense under article 51 of the Charter. The Handbook, on 
the other hand, freely uses the vocabulary of the Laws of War and appears 
to admit a considerable role for the traditional law. 107 If NATO has not yet 
attempted to resolve such differences, which could crucially affect the 
feasibility of joint NATO action in contexts such as the Gulf conflict, it should 
attach a high priority to doing so. 

The remaining comments upon this second part of the Handbook must be 
understood against that background. The comments are made, for the most 
part, on the assumption that the United States' perception of the role of the 
Laws of War is correct, although that position is not one which commends 
itself to the present author, who prefers the view that those laws must be 
read in light of the constraints on the use of force imposed by the United 
Nations Charter. 

6. Adherence and Enforcement. Chapter six of the Handbook is concerned with 
the responsibility of States and individuals to comply with the Laws of War. 
The most notable provisions concern reprisal, defined as "an enforcement 
measure under the law of armed conflict consisting of an act which would 



134 Law of Naval Operations 

otherwise be unlawful but which is justified as a response to the unlawful 
acts of an enemy." 108 The legal status of reprisals involving the use of force 
is not wholly settled. The United Nations Declaration on Principles of 
International Law Concerning Friendly Relations and Co-operation among 
States in Accordance with the Charter of the United Nations, adopted by 
the General Assembly in 1970 by consensus, provides that "States have a duty 
to refrain from acts of reprisal involving the use of force." 109 This is difficult 
to reconcile with the traditional right of belligerents to take reprisals. Perhaps 
the most satisfactory justification of armed reprisals is to be gleaned from 
a statement in the Handbook itself: "[t]he sole purpose of a reprisal is to induce 
the enemy to cease its illegal activity and to comply with the law of armed 
conflict." 110 Reprisals are, on this view, emphatically not retaliatory: on the 
contrary, they are essentially defensive, being aimed at the prevention of 
further actions in violation of the Laws of War against the State taking 
reprisals. They may be reconciled with the Charter by regarding them as 
an aspect of the doctrine of self-defense, 111 and accordingly they must be 
confined to the action necessary to avert a real and imminent threat, and 
proportionate to the magnitude of the harm threatened. The criteria for valid 
reprisals given in the Handbook are consistent with the traditional rules and 
with the account given here, with one exception. 112 It is said that the reprisal 
must be proportional to the original violation. That may be quite different 
from the proportion which it would bear to the harm threatened in the future, 
against which the proportionality of defensive action should be measured. 
For example, the shooting down without warning of a civil aircraft known 
to be carrying key enemy politicians might occur in circumstances which 
make it plain that only that aircraft and the politicians on it were regarded 
as a military target. There might be no threat of repetitions of the action, 
and in that case "reprisals" would not be justified under article 51 of the 
Charter. In fact, since the Handbook criteria specify that reprisal action must 
desist as soon as the enemy is induced to desist from its unlawful activities, 
this point is probably covered. Furthermore, the Handbook notes that the 
United States has historically been reluctant to resort to reprisal because of 
the risk of triggering retaliatory escalation, and that the National Command 
Authorities alone may authorize the taking of reprisal action. 113 It may 
therefore be expected that the obligation to confine action taken by way of 
reprisal within the limits of proportionality and necessity will be a paramount 
factor in deciding upon the permissibility of any proposed reprisal action. 

7. The Law of Neutrality. The most complex questions concerning the Laws 
of War at sea arise in the context of what used to be called — and is still called 
by the Handbook — the Law of Neutrality. Here there is a direct confrontation 
between the demands or expectations of States not involved in the conflict 
that they be allowed to enjoy their peacetime rights, and on the other hand 



Lowe 135 

the demands or expectations of the combatants that they be allowed to engage 
in operations necessary for the protection of their security and their other 
rights under international law. The position is complicated from the outset 
by the fact that, both under the United Nations Charter and under treaties 
of collective self-defense, States may be obliged to intervene in a conflict 
on behalf of one of the combatant States, and to that extent neutrality is not 
an option. 114 However, as experience in the recent conflict between Iran and 
Iraq shows clearly, there is still an important role for the institution of 
neutrality. 

Chapter seven of the Handbook sets out an account of the rights and duties 
of neutral States, in what is for the most part a clear and concise restatement 
of the traditional rules. Thus, for instance, the "24-hour rule" in Hague 
Convention XIII, requiring that belligerent vessels be given a day to leave 
neutral ports at the outbreak of armed conflict, and the rule limiting the 
number of warships of any belligerent allowed to be in a neutral port 
simultaneously (absent special legislation by the neutral State) to three, are 
repeated here. 115 It was noted above that there are some doubts as to the 
continuing validity of these rules, and as to their applicability in a post- 
Charter world. But the remaining comments on this chapter will deal with 
broader issues, in which the conflict between the Law of Neutrality and 
peacetime rights and duties under the Law of the Sea is most apparent. 

The problem of reconciling the traditional neutral right to close territorial 
waters to belligerent warships 116 with the duty to suspend innocent passage 
only on a non-discriminatory basis was remarked upon above, in the comments 
on chapter five of the Handbook. Other problems arise in the same context. 
One of the most important of these is the uncertain relationship between acts 
of passing vessels which deprive them of their innocence, and acts which 
violate the neutrality of the coastal State. It is not difficult to imagine 
circumstances where the "mere" passage of a belligerent warship steps onto 
the borderline between mere passage and the use of neutral waters as a 
sanctuary or base of operations, but without prejudicing the peace, good order 
or security of the coastal State. This may be true, for instance, in cases where 
the duration of passage exceeds 24 hours. 117 What is the coastal State to do? 
It may feel obliged to apply the peacetime rule, relying upon its rights to 
suspend innocent passage, to terminate non-innocent passage and to act in 
self-defense in order to safeguard its rights and interests. On this basis, it may 
feel obliged to permit what it regards as innocent passage. The other 
belligerent may regard a more protracted passage as a violation of coastal 
neutrality, and assert a right to engage in self-help enforcement actions in 
cases where the neutral State cannot or will not enforce its neutrality. 118 

In the absence of an authoritative determination of the point at which the 
peacetime rules yield to the Laws of War and Neutrality, the dangers of 
disputes arising between the "neutral" and "belligerent" States (use of the 



136 Law of Naval Operations 

terms begs the question) is only too apparent. 119 If the Laws of War and 
Neutrality are to be invoked, there is no obvious solution to this problem. 
If, on the other hand, the actions of combatant and neutral States are judged 
by reference to the rules of self-defense, the legal significance of the transition 
from peace to war is greatly reduced, and the position somewhat more certain. 
The coastal State's rights remain as stated above; but the belligerents may 
not use self-help in response to every uncorrected breach of neutrality, but 
only in response to those breaches which threaten some immediate injury to 
themselves. 

The assertion of the right to engage in self-help enforcement actions is itself 
controversial. 120 Certainly, the judgment of the International Court in the 
Corfu Channel Case suggests that forcible self-help is unlawful in international 
law. 121 There is, indeed, very little evidence, outside the cases of the use of 
force to protect nationals (which are better regarded as instances of the use 
of force in self-defense), of the international community accepting the legality 
of self-help actions. 122 However, the applicability of the view to cases of the 
enforcement of neutral duties might be doubted. Castren, writing in 1954, 
took the same view as that taken in the Handbook. He wrote that "If ... a 
neutral State has neither the desire nor the power to interfere and the situation 
is serious, other belligerents may resort to self-help." 123 The question only 
becomes relevant where combatants violate the neutrality of another State 
which in turn is unable or unwilling to prevent such violation, and is therefore 
unlikely to arise commonly. But if such extreme cases do arise, it seems 
probable that where military considerations demand it, States will not shrink 
from taking such action in self-help, no matter how dubious its legality. It 
should also be recognized that in some cases justifications for action might 
be made on the broad ground of self-defense. 

Similar difficulties attend the attempts to justify the traditional rules on 
visit and search and blockade. Exercise of visit and search interferes with 
the freedom of navigation on the high seas and innocent passage through the 
territorial sea. At what stage in a conflict, and in what circumstances, do 
the conventional rights of visit (which, under the 1958 and 1982 Conventions, 
do not extend to visit and search for the purpose of interdicting supplies to 
the enemy) give way to the traditional belligerent right of visit and search? 124 
As was noted above, the British view appears to be that each individual 
instance of visit and search must be justified as an exercise in self-defense, 
whereas the Handbook appears to contemplate systematic visit and search. 
Pragmatism suggests that the difficulties of determining the nature of cargoes 
carried by merchant ships should tend to support a right of systematic visit 
and search, but it must be admitted that this is difficult to reconcile with 
the normal navigational rights of neutral States under the 1958 and 1982 
Conventions (and, of course, under customary law). 



Lowe 137 

Associated with the question of visit and search is the troubled question 
of contraband. It is often observed that because the war effort of a country 
is so inextricably rooted in its general economy, the distinction between 
materials which contribute to the war effort and those which do not simply 
cannot be drawn with anything approaching clarity. There has been a steady 
move in this century towards the extension of the category of contraband. 
To speak of contraband consisting in goods "susceptible to use in armed 
conflict" hardly narrows the field significantly, as those who recall the 
collection of domestic saucepans and park railings for use by the armaments 
industry in World War II will attest. 125 And if the list of goods the export 
of which has been embargoed on security grounds under the United States 
Export Administration Act is anything to go by, the list of contraband goods 
will be a long one. 126 The Handbook specifies medicines, clothing, shelter and 
food, etc., for the civilian population and sick and wounded combatants as 
exempt from capture as contraband, provided there is not serious reason to 
suppose that such goods will be diverted for military purposes or will release 
other goods for military use and give the enemy a definite military 
advantage. 127 This might compromise the notion of contraband in abstract, 
since all such goods can contribute to the war effort. But the humanitarian 
considerations are rightly to the fore in these cases, and these are more likely 
to be secured by clear statements of the goods exempt from capture than 
by attempting to formulate a coherent and comprehensive definition of 
contraband. 

Consideration of contraband leads naturally to a consideration of blockade. 
Here again, the foremost question is whether the legality of blockade must 
be referred to article 51 of the United Nations Charter, or whether there 
is a more general right for combatants to use this tactic. If article 51 is the 
crucial provision then the blockade must be mounted against an imminent 
threat — and under the rules set out in the Nicaragua case, an imminent threat 
of an armed attack. Precautionary blockades of the kind used in the Cuban 
Missile Crisis are not lawful. Reference of the question to the Laws of War 
raises the general issue of the persistence of those rules and of the manner 
in which the expectation of the continued enjoyment of freedom of navigation 
and innocent passage under the 1958 and 1982 Conventions is to be 
accommodated, and the determination of the point, if any, at which those 
conventions are overridden by the Laws of War. That question has taken on 
an added significance in the light of the International Court's ruling in the 
Nicaragua case that the mining of Nicaraguan ports by the United States 
infringed third States' freedom of communication and maritime commerce. 128 
That said, the account of blockade given in the Handbook 129 is, in terms of 
the traditional Laws of War, unexceptionable. There are some debatable 
points, such as the old chestnuts as to whether a blockade can lawfully be 
mounted by mining alone, 130 and whether the prohibition in Hague 



138 Law of Naval Operations 

Convention VIII on the use of naval mines "with the sole purpose of 
intercepting commercial shipping" in effect prohibits the use of mines for 
blockade. But such questions seem devoid of substance today. 131 There can 
be little doubt that mines will be used for the purposes for which they are 
designed, which include the interdiction of shipping bound for enemy ports, 
and that such uses are unlikely to be challenged on the basis of an alleged 
incompatibility with the Laws of War — although challenges might be based 
on interference with the freedom of navigation established in the (peacetime) 
Law of the Sea. 132 

The final matter for discussion in this chapter is the section on belligerent 
control of the immediate area of naval operations. 133 Put briefly, the Handbook 
asserts a right to establish zones around naval operations from which neutral 
ships may be excluded, so long as such ships are not thereby denied access 
to international straits or to neutral nations, and within which neutral ships 
are subject to control by the belligerent naval commander; neutral ships not 
complying with orders in the zone, or engaging in activities benefitting the 
enemy (such as the carriage of contraband, or communicating military 
information) are liable to capture or destruction. Such zones were established 
by both sides in the Second World War, but it must be noted that they are 
different in nature and justification from exclusion zones of the kind 
established by the United Kingdom during the Falklands conflict. The latter 
did not purport to exclude neutral shipping; rather, ships therein were 
regarded as operating in support of the Argentinian occupation of the islands, 
and therefore hostile and liable to attack, unless the ships had obtained the 
consent of the British Government to transit the zone. 134 The zones were 
conceived as a means of dealing with the problem of determining the "hostile 
intent" of foreign ships which would justify the British Navy in using force 
in self-defense: mere presence in the zone constituted prima facie evidence of 
hostile intent. The legality of any action against Argentinian or other ships 
would by this view still have to be judged under article 51 of the United 
Nations Charter. War zones, on the other hand, claim to draw their validity 
from the Laws of War, and to the extent that action is taken in them which 
goes beyond the limits of lawful self-defense under article 51, their legality 
must be regarded as being at best highly controversial. The crucial provisions 
are likely to be found in the Rules of Engagement which supplement the 
account given in the Handbook. 

8. The Law of Naval Targeting 

9. Conventional Weapons and Weapons Systems 

10. Nuclear, Chemical and Biological Weapons 



Lowe 139 

11, Noncombatant Persons 

12, Deception During Armed Conflict 

The remaining chapters of the Handbook raise few issues relating specifically 
to the Law of the Sea, and will be dealt with briefly. Chapter eight includes 
a valiant attempt to salvage some sane and humanitarian rules from the 1936 
London Protocol after the savagery of submarine warfare during World War 
II. However, the obligation to place the crew of a merchant ship in a place 
of safety before destroying it is one which favors States with large navies 
at their disposal, and despite all the honorable intentions of the drafters of 
the Handbook, one is left with the suspicion that this is likely to be one of 
the first provisions to disappear in the downward spiral of violation and 
reprisals which has characterized all the major wars this century. 
Furthermore, the exceptions which the Handbook admits, allowing attack 
without warning of, inter alia, armed merchant ships, 135 are likely to increase 
the danger to merchantmen. The arming of merchant ships may well be seen 
as a necessary and prudent step at an early stage in a conflict, especially if 
(as is the case in the recent Gulf conflict) merchantmen have been subjected 
to surprise attacks by light surface vessels. 

Chapter nine contains some interesting remarks on naval mines. Modern 
influence mines do not, of course, come within the literal wording of Hague 
Convention VIII, but the Handbook applies the principles enshrined in the 
Convention to them by analogy. The view that controlled mines may be freely 
laid during peacetime in a State's internal, archipelagic or territorial waters, 
or on the high seas or EEZ (provided that they do not unreasonably interfere 
with other uses of the high seas or EEZ) without notification, because they 
do not constitute a hazard to navigation, is noteworthy. 136 

As far as international waters are concerned, this view is controversial. 
It might be argued that the sowing of controlled mines constitutes a threat 
of force, to be justified under article 51 of the Charter. Certainly, it is difficult 
to see the mining of international waters as anything other than a preparation 
for the threat or use of force, and such preparation may itself be regarded 
as an unlawful threat of force under article 2(4) of the United Nations Charter, 
although there may be some difficulty in identifying the State against which 
the supposed threat is made. Such mining may also conflict with the peacetime 
Law of the Sea. The sowing of controlled mines in the EEZ of another State 
in peacetime gives rise to the argument rehearsed above concerning the extent 
of third-State rights in the EEZ; and if mining is regarded as an "unattributed" 
right under the 1982 Convention, the legality of which falls for decision under 
article 59, it is unlikely that a claim to a right to lay controlled mines could 
be supported except in cases where self-defense provides a justification. The 
laying of controlled mines on the high seas, with the proviso stated in the 



140 Law of Naval Operations 

Handbook, may also conflict with the Law of the Sea. If the argument 
concerning the breach of article 2(4) of the Charter sketched out above is 
accepted, such mining would violate article 301 of the 1982 Convention, which 
requires States using the seas to comply with obligations expressed in wording 
which follows the terms of article 2(4). Technically, this could be important. 
It might be argued that breach of article 301 allows other States to suspend 
the operation of the Convention in relation to the defaulting State. 137 
However, even if this argument were to be accepted, it is unlikely to give 
States rights against the defaulting State which they would not otherwise 
enjoy under the doctrine of self-defense, the right to prevent non-innocent 
passage, and so on. 138 

These objections have little force in relation to the mining of a State's own 
waters, since laying controlled mines may be seen as a defensive measure 
which the State is entitled to take. Any such mines must not in fact constitute 
a hazard. If there is any real risk of injury to shipping from a controlled mine, 
once the mine is armed, notification would be necessary. Mines could, 
moreover, only be sown in a manner which did not have the practical effect 
of denying to foreign ships such rights of passage as they might have in the 
waters in question. 

Sowing armed mines is a different matter. Coastal States are certainly 
entitled to mine their own waters, subject to the duty to notify their location 
and not to hamper the exercise of the right of innocent passage except 
temporarily and in limited areas for security reasons. Mining international 
waters is a different matter. The International Court in the Nicaragua case 
characterized the mining of Nicaraguan ports as an infringement of the 
freedom of communications and of maritime commerce, and condemned the 
failure to notify the existence of the minefields as a breach of the principles 
of humanitarian law. 139 It did not decide that the use of mines in peacetime 
as a measure of self-defense is per se unlawful. The statement in the Handbook 
that international waters may be mined before the outbreak of armed conflict 
only under the most demanding requirements of individual or collective self- 
defense, and subject to prior notification of the location and the anticipated 
date of removal, appears justifiable. Indeed, the tone of the passage in the 
Handbook is markedly more restrained than an earlier State Department paper 
on the subject. 140 If the threat or use of force implicit in the mining is justified 
on the grounds of self-defense, prior notification is given, and the areas mined 
are not so extensive or so important to third-State navigation as to amount 
to an unreasonable restraint on the freedom of navigation, then the mining 
of international waters should be regarded as a lawful use of the high seas. 

The account of the legal limitations on mining in wartime, which follows 
closely the terms of Hague Convention VIII, is not controversial. 141 It will 
be noted that the Handbook regards the emplacement of nuclear mines on the 



Lowe 141 

seabed beyond the territorial sea as prohibited by the Seabed Arms Control 
Treaty. 142 

By the time the lawyer gets to chapter ten, which deals with weapons with 
an unusual potential for causing indiscriminate and unnecessary suffering, he 
or she is likely to feel that the time for legal debate is fast drawing to an 
end. Experience of the wars since 1945 offers little encouragement to those 
who try to preserve in war at least the basic moral and humanitarian values, 
in whose name so many wars are fought. The prohibitions on the first use 
of lethal chemicals, and the use of biological weapons, are soberly recited, 
as is the prohibition on the targeting of civilian populations with nuclear 
weapons. The latter, in particular, will warm the hearts of those who find 
the targeting of enemy cities with long-range nuclear missiles morally 
repugnant and legally indefensible. The legality of the use of nuclear weapons 
against enemy combatants is, however, affirmed. Apart from expressing the 
fervent hope that these provisions remain of academic interest, and that some 
thought has been given as to ways of preserving in practice the distinction 
between combatants and noncombatants in nuclear exchanges, there is little 
that the lawyer can add. 

Concluding Remarks 

This paper has concentrated on the Law of the Sea in peacetime, because 
that is still the law most commonly relevant. Before closing, the central point 
made in relation to the section of the Handbook on the Law of War should 
once more be emphasized. The very idea that the Laws of War, in particular 
the eighty-year old Hague Conventions, remain binding is one which is open 
to serious doubt. The principles which underlie those laws and conventions 
no doubt remain valid, but there is much to be said for the view that there 
should be but one section in this Handbook, on the Law of the Sea, and that 
all questions concerning the use of armed force should be referred to the rules 
on the use of force and self-defense embodied in the United Nations Charter. 
The choice between these two approaches appears to be open, and the law 
unclear. The final decision in practice, which will in turn yield the 
authoritative answer in law as to which of the two is correct, lies in the hands 
of those in the United States and elsewhere who write and implement 
handbooks such as that reviewed here. Their practice will constitute the new 
customary law. As a matter of policy there is much to be said for the certainty 
and predictability which the detail of the Laws of War inject into armed 
conflict, minimizing the risk of unwanted escalations of the use of force. But 
there are problems in reconciling them with the Charter and with the 
peacetime Law of the Sea, and those problems must be attended to. Peace 
is fragile enough without the opening up of a body of law outside the Charter 
to which States may appeal when the constraints of article 51 do not suit 



142 Law of Naval Operations 

them. The Handbook is an excellent starting point for the task of revising the 
Laws of War to bring them in line with contemporary law and contemporary 
warfare. That task is an urgent one. 

Notes 

* Faculty of Law, Cambridge University, United Kingdom. 

1. U.S. Department of the Navy, The Commander's Handbook on the Law of Naval Operations, NWP 9 
(Washington: 1987) [hereinafter referred to as the Handbook], superseding U.S. Department of the Navy, 
Law of Naval Warfare NWIP 10-2 (Washington: 1955). 

2. Handbook, supra note 1, p. 27. 

3. See further A. V. Lowe, "Do General Rules of International Law Exist?", Review of International Studies, 
v. 9, pp. 207-213 (1983) and id., v. 10, pp. 183-87 (1984); Theodore Stein, "The Approach of the Different 
Drummer: The Principle of the Persistent Objector in International Law," Harvard International Law Journal, 
v. 26, pp. 457-82 (1985). 

4. See the 1958 Convention on the Territorial Sea and Contiguous Zone, United Nations Treaty Series, 
v. 561, p. 205, and the 1982 United Nations Convention on the Law of the Sea, U.N. Pub. Sales No. 
E.83.V.5, article 7; cf Anglo-Norwegian Fisheries Case, [1951] I.C.J. Reports, p. 116. The Conventions may 
hereafter be referred to as the Territorial Sea Convention and the 1982 Convention respectively. References 
to the 1958 Conventions are to the legal regime established in the Territorial Sea Convention, the 1958 
Convention on the High Seas, United Nations Treaty Series, v. 450, p. 82, and the 1958 Convention on the 
Continental Shelf, United Nations Treaty Series, v. 499, p. 311. 

5. Handbook, supra note 1, par. 1.3.2. 

6. Handbook, supra note 1, par. 1.3.2. 

7. G. Francalani, et al. (eds.), Atlas of the Straight Baseline Part I: Article 7 of the Convention of the United 
Nations on the Law of the Sea (Milan, 1986). 

8. See Francesco Francioni, "The Gulf of Sidra Incident (United States v. Libya) and International 
Law ," Italian Yearbook of International Law , v. 5, pp. 85-109 (1980-81); and see generally "Symposium on Historic 
Bays of the Mediterranean," Syracuse Journal of International Law and Commerce, v. 11, pp. 205-415 (1984). 

9. Handbook, supra note 1, par. 1.3.3.1. 

10. [1951] I.C.J. Reports, p. 116, at pp. 138-39. Cf. L.F.E. Goldie, "Historic Bays in International Law," 
Syracuse Journal of International Law and Commerce, v. 11, p. 211, at pp. 222-23 and passim (1984). 

11. Territorial Sea Convention, supra note 4, article 24; 1982 Convention, supra note 4, article 33. 

12. See A. V. Lowe, "The Development of the Concept of the Contiguous Zone," British Yearbook of 
International Law, v. 52, p. 109 (1981); Sir Gerald Fitzmaurice, "Some Results of the Geneva Conference 
on the Law of the Sea," International and Comparative Law Quarterly, v. 8, p. 73 (1959). Contra, S, Oda, "The 
Concept of the Contiguous Zone," id., v. 11, p. 131 (1962). 

13. United States v. Taiyo Maru, 395 F.Supp. 413 (M. D. Maine 1975), American Journal of International Law, 
v. 70, pp. 138, 549, 554 (1976). The District Court for the District of Maine held that "[although Article 
24 only affirmatively recognizes the right of a coastal State to create a contiguous zone for one of the 
four enumerated purposes, nothing in the Article precludes the establishment of such a zone for other 
purposes, including the enforcement of domestic Fisheries law." 395 F.Supp. at 419. 

14. United States v. Gonzalez, lib F.2d 931 (11th Cir. 1985), American Journal of International Law, v. 80, 
p. 653 (1986). The United States Court of Appeals for the Eleventh Circuit held that foreign nationals 
on foreign ships outside the U.S. territorial sea could be prosecuted by the United States "under the 
'protective principle' of international law . . . which permits a nation to assert jurisdiction over a person 
whose conduct outside the nation's territory threatens the nation's security or could potentially interfere 
with the operation of its governmental functions" and that "there is no fixed rule among the customs 
and usages of nations which prescribes the limits of jurisdictional waters other than the rule of 
reasonableness, that a nation may exercise authority upon the high seas to such an extent and to so great 
a distance as is reasonable and necessary to protect itself and its citizens from injury." 776 F.2d at 938- 
39 [citations omitted]. 

15. See U.S. Department of State, Office of the Geographer, National Maritime Claims 1958-1985 
(Washington: 1985), p. 25. 

16. Handbook, supra note 1, par. 1.5.4. But see note 14 supra. 

17. Supra note 15. The Geographer lists the following States as claimants to security zones: Bangladesh, 
Burma, Cambodia, Haiti, India, Pakistan, Sri Lanka, Vietnam and Yemen (Aden). Cf. Handbook par. 2.4.4. 

18. Handbook, supra note 1, par. 1.5.2. 



Lowe 143 

19. See Handbook, par. 4.3.1, where it is said that, "U.S. warships and military aircraft enjoy the full 
spectrum of the high seas freedoms of navigation and overflight, including the right to conduct naval 
maneuvers" in the waters beyond the territorial sea; and par. 2.4.2, where it is said that since such high 
seas rights exist, "the existence of an exclusive economic zone need not, of itself, be of operational concern 
to the naval commander. " See further, e.g., Horace B. Robertson, Jr., "Navigation in the Exclusive Economic 
Zone," Virginia Journal of International Law, v. 24, p. 865 (1984). 

20. United Nations, Office of the Special Representative of the Secretary-General for the Law of the 
Sea, Law of the Sea Bulletin, No. 5 (New York: 1985), pp. 6-7, 8, 24. 

21. Par. 9.2.2 of the Handbook regards the sowing of controlled mines in the EEZ as permissible so 
long as this does not unreasonably interfere with the interests of other high seas users. 

22. See A. V. Lowe, "Some Legal Problems Arising from the Use of the Seas for Military Purposes," 
Marine Policy, v. 10, p. 171 (1986); Barbara Kwiatkowska, "Military Uses of the EEZ — a Reply," id., v. 
11, p. 249 (1987); A. V. Lowe, "Military Uses in the EEZ— a Rejoinder," id., p. 250. Since the latter 
exchange, the Government of Uruguay has confirmed that my interpretation of its position set out in 
the rejoinder to Dr. Kwiatkowska is correct. Letter from the Ambassador, Embassy of the Oriental 
Republic of Uruguay, London, August 18, 1987. See also the materials cited supra note 19. 

23. United States Statement made in exercise of the right of reply, March 8, 1983, UNCLOS III Official 
Records, v. XVII, pp. 243-44. Cf, statements made by the Federal Republic of Germany and Italy. Id., 
pp. 240-41, 241-42, respectively. 

24. Handbook, supra note 1, par. 1.8; 1982 Convention, supra note 4, article 76. The actual position is 
rather more complicated, as article 76 and Annex II to the Final Act of UNCLOS III make clear. 

25. Handbook, supra note 1, par. 1.8. Antarctica is "territory not subject to the sovereignty of any nation," 
at least in the view of the United States. 

26. See the report to the Council of the International Civil Aviation Organization, United Nations 
Convention on the Law of the Sea: Implications, if any, for the Application of the Chicago Convention, its Annexes 
and Other International Air Law Instruments, ICAO Doc. No. C-WP/8077, October 1, 1985, pars. 10, 29. The 
Report is reprinted in International Organizations and the Law of the Sea: Documentary Yearbook, v. 1, 1985 
(London/Dordrecht/Boston, 1987), p. 310. 

27. Report to the Council of the International Civil Aviation Organization, supra note 26, pars. 26- 
33. 

28. The Handbook, supra note 1, par. 2.5.2, states that "[mjilitary aircraft may engage in flight operations, 
including ordnance testing and firing, surveillance and intelligence gathering" over the EEZ, a formula 
which touches upon Brazilian views on both military uses of the EEZ and overflight rights, and which 
might be argued to be subject to the "article 59" conflict resolution procedure under the 1982 Law of 
the Sea Convention. See supra text at note 20. 

29. Handbook, supra note 1, pars. 2.1, 2.2; High Seas Convention, supra note 4, articles 8, 9; 1982 
Convention, supra note 4, articles 29, 32, 96. 

30. Handbook, supra note 1, par. 2.1.2.1. 

31. U.S. Department of State, Office of the Geographer, National Maritime Claims: 1958-1985 
(Washington: 1985), p. 10. That report does not list Spain as making special provision for the passage 
of nuclear-powered ships, but Spanish Act No. 25/64, April 29, 1964, article 7, stated that the passage 
of nuclear-powered ships through the territorial sea was to be considered an exception to the right of 
innocent passage. See translation of the Act reprinted in United Nations, United Nations Legislative Series, 
U.N. Doc. ST/LEG/SER.B/16, p. 45. 

32. Handbook, supra note 1, par. 2.3.1. 

33. Text reprinted in International Legal Materials, v. 24, p. 1440 (1985) and United Nations, Law of the 
Sea Bulletin, No. 6 (New York: 1985), p. 24. The Treaty entered into force on December 11, 1986. 

34. See J. C. Woodliffe, "Ports Visits by Nuclear Armed Naval Vessels: Recent State Practice," 
International and Comparative Law Quarterly, v. 35, p. 730 (1986); Hisakazu Fujita, "The South Pacific Nuclear 
Free Zone Treaty and the Anti-nuclear Policy of New Zealand," Kansai University Review of Law and Politics, 
v. 8, p. 1 (1987). 

35. 1982 Convention, supra note 4, articles 22, 23, 41, 42, 54. 

36. For the 1958 definition, see Territorial Sea Convention, supra note 4, article 14(4). 

37. Handbook, supra note 1, par. 2.3.2.1. 

38. South African Maritime Traffic Act, No. 2 of 1982, section 8, as amended by the Maritime Traffic 
Amendment Act, No. 5 of 1983. The automatic deprivation of innocence would be difficult to justify 
under any interpretation of the law. International law requires actual, not "deemed," prejudice to the 
peace, good order or security of the territorial State. 

39. A good example occurred in Panama. General Noriega is reported to have "accused the United 
States of escalating its aggression against Panama by sending the helicopter carrier Okinawa through the 
Panama Canal. A U.S. spokesman said the ship's journey was routine, but General Noriega claimed that 



144 Law of Naval Operations 

U.S. military intervention was imminent." "Noriega Stands on Panama's 'dignity,' " The Independent 
(London), March 31, 1988, p. 6. The status of the waters is different, but the principle is the same. 

40. Territorial Sea Convention, supra note 4, article 16(1); 1982 Convention, supra note 4, article 25(1). 

41. For enactments of the provisions on innocent passage, see the law of France (Decree No. 85/185, 
reprinted in United Nations, Law of the Sea Bulletin, No. 6 (New York: 1985), p. 14) and Southern Yemen 
(Act No. 45 of 1977 concerning the Territorial Sea, Continental Shelf and other Marine Areas, reprinted 
in United Nations Legislative Series, National Legislation and Treaties Relating to the Law of the Sea, ST/LEG/ 
SER.B/19 (New York: 1980), p. 21). Cf, the 1984 Soviet Rules for Navigation and Sojourn of Foreign 
Warships in the Territorial Waters (Territorial Sea) of the U.S.S.R. and the Internal Waters and Ports 
of the U.S.S.R., reprinted in International Legal Materials, v. 24, p. 1715 (1985). 

42. Handbook, supra note 1, par. 2.3.2.3. 

43. Territorial Sea Convention, supra note 4, article 16(3); 1982 Convention, supra note 4, article 25(3). 

44. See the Communication transmitted to the Permanent Missions of the States Members of the United 
Nations at the request of the Permanent Representative of the United States to the United Nations, July 
10, 1985 (Reference NV/85/11), reprinted in United Nations, Law of the Sea Bulletin, No. 6 (New York: 
1985), p. 40, where it is stated: "International law does not permit a coastal State to subject an area of 
its territorial sea to a permanent prohibition of navigation." 

45. See, e.g., Decree of 10 October 1951 concerning the Territorial Sea and Internal Waters of the 
People's Republic of Bulgaria (article 8), reprinted in United Nations Legislative Series, Laws and Regulations 
on the Regime of the Territorial Sea, ST/LEG/SER.B/6 (New York: 1957), p. 80; Decree No. 39 of January 
28, 1956, concerning the regulation of the regime of territorial waters of the Republic of Romania (article 
5), id., p. 238. See also the Soviet Law on the State Frontier, November 24, 1982 (article 17), reprinted 
in United Nations, Law of the Sea Bulletin, No. 4 (New York: 1985), p. 24; and the Soviet Rules for Navigation 
and Sojourn of Foreign Warships in the Territorial Waters (Territorial Sea) of the U.S.S.R. and the Internal 
Waters and Ports of the U.S.S.R., supra note 41, at p. 1717. 

46. North Atlantic Coast Fisheries Arbitration, Proceedings, v. II, p. 2007. 

47. The figures are taken from United States Department of State, Office of the Geographer, National 
Maritime Claims: 1958-1985 (Washington: 1985), p. 10. 

48. See D. P. O'Connell, The Influence of Law on Sea Power (Manchester: Manchester University Press, 
1975), p. 140. 

49. Handbook, supra note 1, par. 2.3.2.4. 

50. 1982 Convention, supra note 4, articles 37-44, 53-54. 

51. United Nations, Law of the Sea Bulletin, No. 5 (New York: 1985), p. 42. 

52. House of Lords, Parliamentary Debates, v. 484, col. 382, February 5, 1987. 

53. Treaty of Peace between the Arab Republic of Egypt and the State of Israel, reproduced in 
International Legal Materials, v. 28, p. 362 (1979). For academic argument on the point, see e.g., W. Michael 
Reisman, "The Regime of Straits and National Security: An Appraisal of International Lawmaking," 
American Journal of International Law, v. 74, p. 48; John Norton Moore, "The Regime of Straits and the Third 
United Nations Conference on the Law of the Sea," id., p. 77; D. P. O'Connell, The International Law 
of the Sea (Oxford: Oxford University Press, 1982), v. I, chapter 8. 

54. Reproduced in Robin Churchill & Myron Nordquist, New Directions in the Law of the Sea (Dobbs 
Ferry, N.Y.: Oceana Publications, 1975), v. IV, p. 330. 

55. See the British letter of January 2, 1973, to the Secretary General of the United Nations, quoted 
in United Nations, Multilateral Treaties Deposited with the Secretary-General: Status as at 31 December 1985, U.N. 
Doc. ST/LEG/SER.E/4, p. 682. The Law of the Sea Convention does provide for denunciation, on one 
year's written notice (article 317). See G. M. White, "UNCLOS and the Modern Law of Treaties," in 
W. E. Butler, (ed.), The Law of the Sea and International Shipping: Anglo-Soviet Post-UNCLOS Perspectives (New 
York/London/Rome: Oceana Publications, 1985), p. 15, at pp. 29-31. 

56. See Lord McNair, The Law of Treaties (Oxford: Clarendon Press, 1961), p. 518. 

57. Handbook, supra note 1, par. 2.3.3.1. Note the qualifications, which follow the provisions of articles 
35, 36 and 45 of the 1982 Convention, in pars. 2.3.3.1, 2.3.3.2, and 7.3.5. The qualifications are not entirely 
comprehensive. Article 38(1) of the 1982 Convention excepts from the transit passage regime straits formed 
by the mainland and an offshore island of a state if there is a high seas or EEZ route of similar convenience 
seaward of the island, and article 35(c) preserves the validity of long-established treaty rules governing 
international straits, such as those in the 1921 Convention on the Non-Fortification and Neutrality of 
the Aaland Islands (League of Nations Treaty Series, v. IX, p. 212), the 1940 Finland-Soviet Union Agreement 
on the Demilitarization of the Aaland Islands (United Nations Treaty Series, v. 67, p. 139), the 1857 Treaty 
of Copenhagen (C. Parry, (ed.), Consolidated Treaty Series, v. 116, p. 357), and the 1881 Argentina-Chile 
Boundary Treaty, id., v. 159, p. 45), in addition to the 1936 Montreux Convention on the Turkish Straits 
(League of Nations Treaty Series, v. 173, p. 213) which alone is cited in the Handbook. 



Lowe 1 45 

58. See T. L. McDorman, "In the Wake of the Polar Sea," Marine Policy, v. 10, p. 243 (1986). Similar 
problems have arisen in relation to passage through controversial straits in the Soviet Arctic. See W. E. 
Butler, The Northeast Arctic Passage (Aalphen and den Rijn: Sijthoff & Nordhoff, 1978), passim. 

59. Handbook, supra note 1, par. 2.3.3.1. 

60. Id. 

61. Id. 

62. Id., par. 2.3.4.1. 

63. United Nations, Law of the Sea Bulletin No. 5 (New York: 1985), p. 19. 

64. See objections made to the Philippine declaration by the following: Byelorussian Soviet Socialist 
Republic, reproduced in United Nations, Law of the Sea Bulletin, No. 6 (New York: 1985), p. 9; 
Czechoslovakia, id., p. 10; Ukranian Soviet Socialist Republic, id., pp. 11-12; Union of Soviet Socialist 
Republics, id., pp. 12-13; Bulgaria, id., No. 7 (New York: 1987), pp. 7-8. 

65. See, e.g., the controversy over the Greek Flight Information Region in Institute for Political Studies, 
The Status Quo in the Aegean (Athens: undated), pp. 14-15; association of Journalists, The Aegean Realities . . . 
Istanbul: undated), pp. 23-26. 

66. Handbook, supra note 1, par. 2.4.3.1. 

67. Id., par. 2.4.5.1. 

68. Id., pars. 3.4 to 3.4.3.2. Cf, High Seas Convention, supra note 4, articles 14-22; 1982 Convention, 
supra note 4, articles 100-07, 110. 

69. Handbook, supra note 1, par. 3.4.2.4. 

70. See Patricia W. Birnie, "Piracy: Past, Present and Future," Marine Policy, v. 11, p. 163 (1987). Note, 
for example, that the hijackers of the Achille Lauro were sought by the United States on charges of, inter 
alia, piracy. See the critical discussion of these charges in Dr. Birnie 's paper. Id., p. 177. 

71. Handbook, supra note 1, par. 3.4.3.2. 

72. Corfu Channel Case, Judgment of April 9, 1949, [1949] I.C.J. Reports, p. 4. 

73. Handbook, supra note 1, par. 3.9. This accords with article 23 of the High Seas Convention and 
article 111 of the 1982 Law of the Sea Convention. 

74. Handbook, supra note 1, par. 3.11.1. 

75. See J. P. Pancracio, "L'affaire de VAchille Lauro et le Droit International," Annuaire Francaise de Droit 
International, v. 31, p. 221 (1985). 

76. See, e.g., Natalino Ronzitti, Rescuing Nationals Abroad Through Military Coercion and Intervention on 
Grounds of Humanity (Boston: Martinus Nijhoff Publishers, 1985); C. J. Greenwood, "International Law 
and the United States Air Operation Against Libya," West Virginia Law Review, v. 89, p. 933 (1987), and 
references therein. 

77. Handbook, supra note 1, par. 3.11.1.1. 

78. Id., par. 3.11.2. The position is rather different if the foreign flag ships are in a United States convoy. 
It is arguable that an attack on any ship is an attack on the convoy itself, so justifying the use of force 
in se/f-defense by the United States warships. 

79. Id., par. 3.11.1. 

80. Id., pars. 4.3.2. to 4.3.2.2. 

81. Abram Chayes, The Cuban Missile Crisis (Oxford: Oxford University Press, 1974), pp. 15, 108-09 
and passim. The present writer shares the view of Professor Henkin, annexed to the Chayes study at p. 
149, that the "authorization" of the quarantine by the Organization of American States was not an adequate 
legal justification for it. The justification must be found in article 51 of the United Nations Charter, if 
it is to be found anywhere. 

82. [1986] I.C.J. Reports, p. 12, at pp. 92-94, 109-11. See the criticisms made by Judge Schwebel, at 
pp. 347-48, with which the present writer has much sympathy. 

83. Handbook, supra note 1, par. 4.3.2. 

84. Objections need not be based on a reading of article 51. The British Government, questioned on 
its attitude to the mining of Nicaraguan ports by the United States, replied, "[W]e are committed to 
the principle of freedom of navigation and deplore the mining of Nicaraguan ports." House of Commons, 
Parliamentary Debates, v. 58, col. 470, April 13, 1984. 

85. [1986] I.C.J. Reports, p. 12, at p. 93. 

86. Handbook, supra note 1, par. 4.3.2.1. 

87. D. P. O'Connell, The Influence of Law on Sea Power (Manchester: Manchester University Press, 1975), 
p. 83. 

88. This was the basis of British support for the action. "[I]t is our view that the action taken by 
the United States on 19th October was entirely justifiable in exercise of their right of self-defence in 
the face of the imminent threat of future attacks." House of Lords, Parliamentary Debates, v. 490, col. 724, 
November 25, 1987. The statement would have held closer to the Caroline formula if it had referred to 
"the threat of imminent attacks." 



146 Law of Naval Operations 

89. Handbook, supra note 1, par. 4.1. 

90. Id., par. 5.4.1. 

91. Hague Convention (IV) Respecting the Laws and Customs of War on Land, Consolidated Treaty 
Series, v. 205, p. 227; Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and 
Persons in Case of War on Land, id., p. 299; Hague Convention (VIII) Relative to the Laying of Automatic 
Submarine Contact Mines, id., p. 331; Hague Convention (IX) Concerning Bombardment by Naval Forces 
in Time of War, id., p. 345; Hague Convention (X) for the Adaptation to Maritime War of the Principles 
of the Geneva Conventions, id., p. 360; Hague Convention (XI) Relative to Certain Restrictions with 
Regard to the Exercise of the Right of Capture in Naval War, id., p. 367; and Hague Convention (XIII) 
Concerning the Rights and Duties of Neutral Powers in Naval War, id., p. 395. 

92. For instance, notifications of the continued application of Hague Convention VIII (on Automatic 
Submarine Contact Mines) were made by Fiji in 1973 and South Africa in 1978. 

93. See D.P. O'Connell, The Influence of Law on Sea Power (Manchester: Manchester University Press, 
1975), pp. 44-52, 92-96. 

94. Handbook, supra note 1, par. 5.1. 

95. See articles 3 and 5 of the United Nations General Assembly Resolution 3314 (XXIX) on the 
Definition of Aggression, General Assembly, Official Records, 29th Session, Supp. 21, reprinted in American 

Journal of International Law, v. 69, p. 480 (1975). The resolution was adopted by consensus, without a vote. 

96. See remarks of the International Court of Justice in the Nicaragua case. [1986] I.C.J. Reports, p. 
12 at p. 112. 

97. U.N. Charter, article 103. 

98. For an interesting example of an argument recasting the requirements of the Hague Conventions 
(Convention VIII, on Automatic Submarine Contact Mines) in the light of the Charter, see U.S. Department 
of State, Use of Naval Mines in the Exercise of Self Defense (Washington: April 13, 1984). 

99. The major conflicts are listed in a paper entitled, "The Impact of the Law of the Sea on Naval 
Warfare," presented by the present writer to the Preliminary Round Table of Experts on International 
Humanitarian Law Applicable to Armed Conflicts at Sea, San Remo, Italy, June 15-17, 1987, printed in 
Syracuse Journal of International Law and Commerce, v. 14, pp. 657-87, (1988). 

100. United Nations, International Law Commission, Yearbook of the International Law Commission 1956, 
v. II (New York: 1957), p. 256. 

101. There are exceptional cases, concerning the rules of humanitarian law, where this is not true. 

102. Handbook, supra note 1, par. 5.5. 

103. See Judgment of the International Court of Justice in the Nicaragua case, [1986] I.C.J. Reports, p. 
12 at 112 (reference to Hague Convention VIII); and the Swedish declaration on signature of the 1982 
Law of the Sea Convention, reproduced in United Nations, Law of the Sea Bulletin, No. 5 (New York: 
1985), p. 22 (reference to Hague Convention XIII). 

104. Territorial Sea Convention, supra note 4, article 16(3); 1982 Convention, supra note 4, article 25(3). 

105. House of Commons, Parliamentary Debates (Weekly Hansard), v. 90, col. 428, January 28, 1986. The 
statement was repeated verbatim in response to a further Parliamentary question in 1988. Id., v. 127, cols. 
425-26, February 15, 1988. 

106. Handbook, supra note 1, par. 7.6. 

107. This position is by no means confined to the Handbook. See, e.g., U.S. Department of State, Special 
Report No. 166, U.S. Policy in the Gulf (Washington: July 1987), passim. 

108. Handbook, supra note 1, par. 6.2.3. 

109. United Nations, General Assembly, Resolution 2625 (XXV). 

110. Handbook, supra note 1, par. 6.2.3. An alternative explanation might be that reprisals in the context 
of armed conflict belong to the body of law concerning Unfriendly Relations and Non-Cooperation among 
States, and are not addressed by the Declaration. 

111. See Robert W. Tucker, "Reprisals and Self-Defense: The Customary Law," American Journal of 
International Law, v. 66, p. 586 (1972). 

112. Handbook, supra note 1, par. 6.2.3.1. 

113. Id., par. 6.2.3.3. 

114. Id., par. 7.2.1,7.2.2. 

115. Id., par. 7.3 2, 7.3.2.1. 

116. Id., par. 7.3 4.1 to 7.3.6. 

117. Id., par. 7.3 4.1. 

118. Id., par. 7.3.4. 

119. See Correspondence between His Majesty's Government in the United Kingdom and the Norwegian Government 
respecting the German Steamer "Altmark" (London: His Majesty's Stationery Office, 1950), Cmd. 8012. 

120. See, e.g., Julius Stone, Legal Controls of International Conflict (London: Stevens & Sons, Ltd., 1954), 
pp. 400-01 [hereinafter referred to as "Stone"]. 



Lowe 1 47 

121. Corfu Channel Case, supra note 72, p. 35. 

122. See, e.g., the comments of Christopher J. Greenwood, "International Law and the United States' 
Air Operation against Libya," West Virginia Law Review, v. 89, p. 933, at pp. 952-53 (1987). 

123. Erik Castren, The Present Law of War and Neutrality (Helsinki: Suomalaisen Tiedeakatemian 
Toimituksia, 1954), p. 442. 

124. High Seas Convention, supra note 4, article 22; 1982 Convention, supra note 4, article 110. 

125. Handbook, supra note 1, par. 7.4.1. 

126. See, e.g.,]. P. Murphy and A. T. Downey, "National Security, Foreign Policy and Individual Rights: 
The Quandary of U.S. Export Controls," International and Comparative Law Quarterly, v. 30, p. 791 (1981). 

127. Handbook, supra note 1, par. 7.4.1.2. 

128. [1986] I.C.J. Reports, p. 12 at p. 112. Curiously, the Court referred in the same place to Hague 
Convention VIII as if it were still operative "in time of war," although this comment was unaccompanied 
by any reasoning on the question and should be treated cautiously. 

129. Handbook, supra note 1, pars. 7.7 to 7.7.5. 

130. Ingrid Detter Delupis, The Law of War (Cambridge: Cambridge University Press, 1987), p. 268, 
asserts that the answer is no, but the authority which she cites (Hague Convention VIII, article 8) does 
not support her view. 

131. Stone, supra note 120, p. 585, footnote 89, says of the latter question, "The incongruity in the 
contemporary context of the Convention's attempt to prevent the use of mines off the enemy's coast 
'with the sole object of intercepting commercial navigation,' is a measure of the inevitable obsolescence 
in 1953 of any convention which could have been drawn up in 1907." 

132. Note that the Soviet and Chinese objections to the mining of Haiphong were based on interference 
with the freedom of navigation under the 1958 High Seas Convention, and not on alleged violations of 
the Hague Conventions or Laws of War. D. P. O'Connell, The Influence of Law on Sea Power (Manchester: 
Manchester University Press, 1975), p. 95. 

133. Handbook, supra note 1, pars. 7.8, 7.8.1. 

134. For the relevant declarations, see House of Commons, Parliamentary Debates, v. 21, col. 1045, April 
7, 1982 (Maritime Exclusion Zone); id., v. 22, cols, 296-97, April 28, 1982 (Total Exclusion Zone); id., 
v. 27, col. 235, July 22, 1982 (Falkland Islands Protection Zone). 

135. Handbook, supra note 1, pars. 8.2.2.2. 

136. Id., par. 9.2.2. 

137. See Vienna Convention on the Law of Treaties, article 60. 

138. Article 60 of the Vienna Convention on the Law of Treaties allows unilateral suspension of a 
convention only in limited cases — essentially, where a State is specially affected by the breach, or the 
breach radically changes the position of all parties. Otherwise, suspension requires the unanimous 
agreement of all parties. 

139. [1986] I.C.J. Reports, p. 12, at p. 112. 

140. U.S. Department of State, Use of Naval Mines in the Exercise of Self Defense (Washington: April 13, 
1984). 

141. Handbook, supra note 1, par. 9.2.3. 

142. Id., par. 10.2.2.1. 



148 Law of Naval Operations 



Chapter VI 
Neutrality 

by 
Mark W. Janis* 



Neutrality, at least as a legal concept, existed neither in antiquity nor during 
the Middle Ages. 1 It may well be that some international practice hardened 
into a customary law of neutrality in the 18th and 19th centuries, a 
development owing much to the theory and practice of the United States, 2 
but the traditional legal edifice, structurally uncertain at the best of times, 
was badly shaken by the contrary usages of the 20th century's two world 
wars and nowadays, in terms of practice, the neutrality laws have sunk into 
a condition of "chronic obsolescence." 3 In terms of theory, article 2(4) of 
the Charter of the United Nations makes war technically illegal, 4 and, there 
being neither formal "belligerents" nor "neutrals," the "rights and duties 
of the old law of neutrality have terminated with the Charter." 5 

What, then, to make of Chapter 7 of the new Commander's Handbook on 
the Law of Naval Operations: "The Law of Neutrality?" 6 There are good 
English-language accounts of the traditional rules of the law of neutrality 
in the treatises of Oppenheim, 7 Colombos, 8 and O'Connell. 9 A thoroughgoing 
account of the history of neutrality is to be found in Jessup's impressive four 
volumes. 10 The Commander's Handbook means to give a brief rendition of the 
traditional law. 11 How might it do better? Three ideas come to mind. 

First, the Commander's Handbook ought to acknowledge that modern 
international theory and practice rarely deal with "belligerents" and 
"neutrals" in their traditional senses. Virtually every paragraph of Chapter 
7 makes reference to "belligerents" and the introductory wording that "it 
has become increasingly difficult to determine with precision the point in 
time when hostilities have become a 'war' and to distinguish belligerent 
nations from those not participating in the conflict" only makes matters 
worse. 12 The point is that doctrine and practice no longer try to decide what 
is formally "war" and what is formally "peace." There are simply conflicts 
between nations which involve the use of force and/or economic sanctions. 
These conflicts usually entangle third states more or less uninterested in the 
outcome, but hopeful of remaining on friendly terms with both sides in the 
dispute. These third states are what we still call "neutrals," but they are no 
longer "neutrals" in the context of the traditional rules. 



Janis 149 

Second, Chapter 7 ought to abandon its more or less unskeptical treatment 
of the traditional law of neutrality. Its approach seems to be grounded on 
the commentary of observers like O'Connell and Baxter who have argued 
that, in theory at least, the old law of neutrality may still come into play 
if the United Nations fails to act at a time of armed conflict. 13 But this is 
a minority point-of-view. Most commentators agree that the technical 
abolition of "war" has also technically abolished the old laws of neutrality. 
Quincy Wright, for example, refutes Baxter simply and plainly: [Neutrality 
in principle cannot exist." 14 Kussbach writes: "It seems clear that the rules 
of international law concerning neutral trading are applicable only when the 
state of neutrality itself is called into being, i.e., when a state of war exists." 15 

Moreover, whatever the outcome of the doctrinal debate about the legal 
effect of the U.N. Charter, even the most energetic proponents of the 
traditional elaboration must admit that there is little in modern practice to 
substantiate their theoretical preference. O'Connell himself observes 
respecting blockade (a topic which, along with its related rules respecting 
contraband and visit and search, absorbs most of Chapter 7's attention): 
"There has been practically no experience of blockade since 1945 to test the 
matter." 16 More realistically, Admiral Miller, dating the demise of traditional 
blockades to the uniform practice of the two world wars, has argued that 
it makes little sense to cling in theory to out-moded rules when "a new look 
is required at the legal framework by which the community seeks to regulate 
the conflict." 17 And McNulty makes good sense, not only about the rules of 
blockade specifically but about the laws of neutrality in general, when he 
writes about the legal and practical climate after 1945: 

In point of fact, it seems ludicrous to contemplate the possibility of any meaningful 
observance of the "legal" code of blockade in the current or predictable state of political 
reality. It is clear that the rules of blockade came into existence solely to protect the 
ordinary sea commerce of neutrals and to regulate the circumstances under which such 
trade could be interrupted. The rules derive out of a 19th century legal regime — a regime 
oriented toward regulating the conduct of states in war and peace. But modern 
international law, of which blockade is a part, no longer seeks to regulate war but to 
prevent its occurrence. 18 

Looking to recent events, Lauterpacht sees little modern practice of a 
traditional neutral-belligerent sort. In the Vietnam and Yemen conflicts, for 
example, there was no attempt "to require states not immediately involved 
to adopt positions of 'neutrality'." 19 And Norton, in a very helpful 1976 
survey, 20 concludes that "[r]ecent armed conflicts have provided little cause 
to invoke the maritime rights and duties of the law of neutrality." 21 Looking 
at the United Nations naval blockade of North Korea in the Korean War 
and the Kuomintang blockade of the Communist Chinese, he decides the first 
"was only of marginal significance" because the North Korean supply routes 
were overland, 22 while the second was futile because the naval powers rejected 
it for being ineffective. 23 Norton does find three examples of visit and search: 



150 Law of Naval Operations 

Egypt's contraband system through the Suez Canal in the 1948 and 1956 Arab- 
Israeli wars, India's and Pakistan's contraband lists in their 1965 conflict, and 
France's searches of merchant ships in the Algerian War of Independence. 24 
But he concludes that all three visit and search cases are "anomalous" since 
in France's case, "the rights were improperly invoked" and in the other two 
cases "the belligerents relying upon these rights had virtually no navies and 
therefore could only apply them to neutral vessels coming within the 
belligerents' own waters." 25 

In the Iran-Iraq war there has been a case made that traditional neutral 
rights and duties are still at stake. Shortly after the war began in September 
1980, both Iran and Iraq declared war or "exclusion" zones. 26 Iraq's only major 
oil port was destroyed early in the fighting and it developed over-land pipeline 
routes, but Iran continued to rely on shipping oil. Beginning in 1984, Iraq 
began to strike at Iranian shipping and Iran at third country shipping, 
especially shipping of Iraq's friendly neighbors; altogether between 1984 and 
1987, Iraq attacked 234 ships and Iran 163 ships. 27 Iran has also visited and 
searched a large number of ships in the Gulf. 28 Beginning in 1987, Iran mined 
shipping lanes in the Gulf. 29 Employing traditional law of neutrality concepts, 
it has been argued that: 

[T]he Persian Gulf belligerents, particularly Iran, have systematically violated the 
rights of neutral shipping. Nonbelligerent merchant vessels that are engaged in neutral 
commerce may not be attacked indiscriminately, as Iran has been doing. 30 

On the other hand, it has been pointed out that whether such shipping is 
"neutral" or not depends on how you decide the question of whether a 
country, such as Kuwait, whose vessels are attacked, is truly a non-belligerent 
when the country is a direct financial supporter of Iraq. 31 Furthermore, 
looking to the United Nations Charter and to the protection of reflagged 
Kuwaiti tankers by the United States, Professor Henkin has argued: 

In the Gulf, some spokesman said recently, the United States remains formally neutral. 
But even if the concept of neutrality can still apply in some cases, can the United States 
be neutral here? No one would accuse us of being a friend of Iran, but there is a strong 
case that Iraq is probably the aggressor. No one has mentioned that for some years now. 
It is true that the Security Council refrained from so holding, in part because the United 
States would not have permit [sic] it, or because the Russians would not permitted [sic] 
it. That raises some questions, but that doesn't change the law. In the absence of a 
Security Council determination that one party was the aggressor, do the laws of the 
Charter not apply? In the absence of such a finding by the Security Council, are states 
free to be neutral even if it is clear that one side had launched the war in violation 
of the Charter?. . . . 

Is Kuwait neutral, or is it, as the first speaker suggested, perhaps a co-belligerent? 
Is the United States supporting Kuwait, and, if so, are we also co-belligerents? If so, 
we may be not only supporting the aggressor — but if the old laws of war apply — we 
also may be violating the laws of war. 

I suggest we may not only have slipped into the war but, from the international 
lawyer's point of view, we seem to have slipped into a particular position on international 
law without much thought about it and without any thought to the long-term 



Janis 151 

consequences. In fact, we seem to be taking seriously the outdated laws of war, but 
not the contemporary law against war. In the process we may have eroded both. At 
least, it cannot be said that the law on neutrality and belligerency is what it was before 
1945. 32 

This is not to say that rules about neutrals might no longer be useful, only 
that a rendition of the traditional rules, whether they be read in full in 
Oppenheim or Colombos or in brief in the Commander's Handbook, no longer 
either describes practice or easily comports with theory. I agree that the object 
of the neutrality exercise should remain much what Chapter 7 says it ought 
to be: "to localize war, to limit the conduct of war on both land and sea, 
and to lessen the impact of war on international commerce." 33 But a faithful 
account of antique rules is simply not a realistic way to proceed. 

Take, for example, the 1962 United States quarantine of strategic arms to 
Cuba. As Miller points out, "the United States could have declared war on 
Cuba, established a blockade, or announced lists of contraband items; although 
undoubtedly, many would have cried that the declaration of war, itself, was 
violative of article 2(4) of the U.N. Charter. ' ,34 Rather, because "traditional 
'blockade' implies and requires a state of belligerency or war, the United 
States did not seek to justify the quarantine as a blockade. There was no 
assertion of a state of war or belligerency." 35 Instead, the United States 
fashioned the quarantine as a regional security action under the Rio Treaty 
and in accord with article 53 of the U.N. Charter. 36 It might also have been 
justified as an exercise of a country's right of self-defense pursuant to Charter 
article 51. 37 In any case, the quarantine fell short of full-scale armed conflict. 
Indeed, the interference was intended to help establish a level of international 
conflict well below that of traditional legal "war" or the "war" more or 
less technically abolished by the United Nations' Charter. 

If my second proposition is right, that given the doctrinal quandaries and 
practical problems besetting the "shadowy existence" of the law of 
neutrality, 38 the Commander's Handbook does not give that subject that "certain 
measure of scepticism" which most observers feel it deserves, 39 what is to 
be done? Booth has suggested that since "[w]ar is rarely declared ... it is 
incumbent upon military organizations ... to make officers conversant with 
the background to the general rules of law governing military operations short 
of war." 40 My third proposition is that Chapter 7 ought to explain that 
whatever we do have for rules respecting neutrality, even when they are 
invoked, they fall short of being the same sort of international law that is 
described in some other parts of the Commander's Handbook. Looking, for 
example, at the law about "Legal Divisions of the Oceans and Airspace," 41 
"International Status and Navigation of Warships and Military Aircraft," 42 
and "Protection of Persons and Property at Sea," 43 one sees, in my opinion, 
a much "harder" law than one observes reviewing the law of neutrality. It 
is, I think, unrealistic to assume that all international law is of the same 



152 Law of Naval Operations 

certainty or of the same legally binding effect. To do so casts unwarranted 
shadows of uncertainty and ineffectiveness on the more successful forms of 
the law of nations. 

It was John Austin, the English legal positivist, who wrote in 1832: 

[T]hat the law obtaining between nations is not positive law: for every positive law 
is set by a given sovereign to a person or persons in a state of subjection to its 
author. . . . [T]he law obtaining between nations is law (improperly so called) set by 
general opinion. The duties which it imposes are enforced by moral sanctions: by fear 
on the part of nations, or by fear on the part of sovereigns, of provoking general hostility, 
and incurring its probable evils, in case they shall violate maxims generally received 
and respected. 44 

As early as 1836, international lawyers were having to cope with Austin's 
critique of their discipline as being merely a form of morality. 45 And, although 
some are satisfied as to the law-like quality of international law, others are 
doubtful. H.L.A. Hart, for example, in a modern reformulation of legal 
positivism, argues that international law is more like primitive law than like 
municipal law because international law lacks "the formal structure of ... a 
legislature, courts with compulsory jurisdiction and officially organized 
sanctions. . . ." 46 

However, neither Austin's nor Hart's nor most other general 
jurisprudential characterizations of international law pay particular attention 
to the diversity of international law. That is, most discussions of the problems 
of the certainty and efficacy of international law assume that there is a system, 
uncertain and ineffective though it may be, of international law and suppose 
that there is something like a single general integrated, if not hierarchial, 
international legal process. Reality is otherwise. 

Various forms of international law vary along what might be called a 
"structural spectrum," there being "a great variety of international legal 
systems, some more structured than others." 47 In some of its forms, for 
example, the system regulating nuclear weapons, international law may be 
so unstructured in terms of both rule-specificity and rule-enforcement as to 
be, at best, a sort of Hart's so-called "primitive law." 48 In some other of its 
emanations, for example, the systems pertaining to the European Economic 
Community and to European Human Rights Law, international law may be 
so well-structured in terms of rule-specificity and rule-enforcement as to be 
virtually as "hard" as any ordinary domestic law. 49 

Given the diversity of international legal systems, we should assume that 
there will be differences in the certainty of their rules and the efficacy of 
their enforcement processes. In analyzing the relationships between law and 
society, Max Weber, at the turn of the century, defined "law" as "an order 
system endowed with certain specific guaranties of the probability of its 
empirical validity." 50 Weber's necessary "guarantees" for law are more 
sophisticated than Austin's necessary "sovereigns" for law. Weber wrote of 



Janis 153 

a "coercive apparatus, i.e., that there are one or more persons whose special 
task it is to hold themselves ready to apply specially provided means of 
coercion (legal coercion) for the purpose of norm enforcement. " The coercive 
apparatus" may use psychological as well as physical means of coercion and 
may operate directly or indirectly against the participants in the system. 51 
Weber's conceptual framework is, I submit, a more useful and realistic way 
to understand the nature and diversity of international law than the theories 
provided by Austin and Hart. 

Looking back to neutrality, it is helpful to remember that "the rules of 
neutrality are products of two forces pulling in opposite directions, the final 
result being determined by the relative bargaining power of the parties." 52 
This is not a promising circumstance, either for the elaboration of certain 
rules or for the efficacious enforcement of those rules. Indeed, in great wars, 
whether they be the Napoleonic Wars or the World Wars, the legal system 
of neutrality has been apt to collapse altogether. 53 

It may be that there will be periods of time, such as that between 1815 
and 1914, when, because of the conditions of international politics, there will 
be a sufficient consensus to generate generally accepted rules and a coercive 
apparatus for a law of neutrality. 54 Moreover, even in times of uncertainty 
and inefficacy, there may be occasional authorities which will pronounce an 
illegality under the law of neutrality. 55 However, for the most part, the rules 
respecting "neutrality" or what Fenwick preferred to call "non- 
participation" 56 will be rules tailor-made to fit particular conflicts and will 
neither be norms of general specificity nor will they be enforced by a coercive 
apparatus comparable to that available for "harder" forms of international 
law. 

Notes 

* Professor of Law, University of Connecticut. 

1. L.Oppenheim, International Law, 5th ed. (London: Longmans, Green, 1935), v. 2, pp. 492-493 
[hereinafter cited as "Oppenheim"]. 

2. Philip C. Jessup, "Diversity and Uniformity in the Law of Nations," American Journal of International 
Law, 1964, v. 58, pp. 344-345. James Kent, Commentaries on American Law, 2d ed. (New York: O. Halsted, 
1832), v. 1, pp. 47-179. 

3. Neill H. Alford, Jr., Naval War College International Law Studies 1963 Vol. 56, Modern Economic Warfare 
{Law and the Naval Participant) (Newport, R.I.: Naval War College, 1967), p. 326. 

4. Elihu Lauterpacht, "The Legal Irrelevance of the 'State of War,' " Proceedings of the American Society 
of International Law , 1968, pp. 62-63. 

5. C.G. Fenwick, "Is Neutrality Still a Term of Present Law?" American Journal of International Law, 
v. 63, p. 102 (1969) [hereinafter cited as "Fenwick"]. 

6. U.S. Navy Dept., The Commander's Handbook on the Law of Naval Operations, NWP 9, 1987 (Newport: 
1987), pp. 7-1 to 7-12 [hereinafter cited as Commander's Handbook]. 

7. Oppenheim, supra note 1, at pp. 492-738. 

8. Constantine J. Colombos, The International Law of the Sea, 4th rev. ed. (London: Longmans, 1959), 
pp. 562-760. 

9. Daniel P. O'Connell, The International Law of the Sea, (Oxford: Clarendon Press, 1984), v. 2, pp. 1141- 
1158 [hereinafter cited as "O'Connell"]. 



154 Law of Naval Operations 

10. Philip C. Jessup and Francis Deak, Neutrality: Its History, Economics and Law: Vol. 1, The Origins (New 
York: Octagon Books, 1935); W. Alison Phillips and Arthur H. Reede, Neutrality: Its History, Economics 
and Law: Vol. II, The Napoleonic Period (New York: Octagon Books, 1936); Edgar Turlington, Neutrality: 
Its History, Economics and Law: Vol. Ill, The World War Period (New York: Octagon Books, 1936); Philip 
C. Jessup, Neutrality: Its History, Economics and Law: Vol. IV, Today and Tomorrow (New York: Octagon Books, 
1936). 

11. Commander's Handbook, supra note 6 at pp. 7-2 to 7-12; The doctrinal bulk of the traditional law is 
enormous. The Harvard international law reference catalogue dealing with "neutral" topics runs to 73 
pages. Harvard Law School Library, Catalog on International Law and Relations (Cambridge, Mass., 1966), 
v. 14, pp. 8-80. 

12. Commander's Handbook, supra note 6 at par. 7.1. 

13. O'Connell, supra note 9, at pp. 1141-42; R.R. Baxter, "The Legal Consequences of the Unlawful 
Use of Force Under the Charter," Proceedings of the American Society of International Law, 1968, p. 73. 

14. Quincy Wright, Proceedings of the American Society of International Law, 1968, p. 79; and see Lauterpacht, 
supra note 4, and Fenwick supra note 5. 

15. Erick Kussbach, "Neutral Trading," Encyclopedia of Public International Law (Amsterdam: North- 
Holland, 1982), v. 4, p. 9. 

16. O'Connell, supra note 9 at p. 1154. Virtually all of O'Connell's evidence of neutrality in general 
is pre-1945. 

17. William O. Miller, "Belligerency and Limited War," Richard B. Lillich and John N. Moore, eds., 
Naval War College International Law Studies, Vol. 62, Readings in International Law from the Naval War College 
Review 1947-1977 (Volume II of Readings) (Newport, R.I.: Naval War College, 1980), p. 168. 

18. James F. McNulty, "Blockade: Evolution and Expectation," id., p. 180. 

19. Lauterpacht, supra note 4 at pp. 59-60. 

20. Patrick M. Norton, "Between the Ideology and the Reality: The Shadow of the Law of Neutrality," 
Harvard International Law Journal, Spring 1976, v. 17, p. 249 [hereinafter cited as "Norton"]. 

21. Id. at p. 302. 

22. Id. at pp. 302-03. 

23. Id. at pp. 303-04. 

24. Id. at pp. 304-06. 

25. Id. at p. 306. 

26. David L. Peace, "Major Maritime Events in the Persian Gulf War," paper presented at the 82d 
Annual Meeting of the American Society of International Law, April 21, 1988, p. 3. 

27. Id. at pp. 4-5. 

28. Id. at pp. 6-8. 

29. Id. at pp. 13-16. 

30. Id. at pp. 17-18. 

31. McNaugher, "The Evolution of U.S. Policy in the Persian/Arabian Gulf," Council on Ocean Law 
and The Law of the Sea Institute, Transcript of an Evening Panel Discussion on the Persian/ Arabian Gulf Tanker 
War: International Law or International Chaos, January 26, 1988 [hereinafter cited as "Transcript"], at pp. 
1,2. 

32. Louis Henkin, "Commentary," Transcript, supra note 31, at 8, 9-10. 

33. Commander's Handbook, supra note 6, par. 7.1. 

34. Miller, supra note 17 at pp. 169-170. 

35. Leonard C. Meeker, "Defensive Quarantine and the Law," American Journal of International Law, v. 
57, p. 515 (1963). 

36. Id. at pp. 516-524. 

37. See Carl Q. Christol and Charles R. Davis, "Maritime Quarantine: The Naval Interdiction of 
Offensive Weapons and Associated Material to Cuba," American Journal of International Law, v. 57, p. 525 
(1963). 

38. Norton, supra note 20, at p. 310. 

39. Yoram Dinstein, Encyclopedia of Public International Law (Amsterdam: North-Holland, 1982), v. 4, p. 
27. 

40. Ken Booth, Law, Force and Diplomacy at Sea (London: George Allen & Urwin, 1985), p. 200. 

41. Commander's Handbook, supra note 6 at pp. 1-1 et seq. 

42. Id. at pp. 2-1 et seq. 

43. Id. at pp. 3-1 et seq. 

44. John Austin, The Province of Jurisprudence Determined (London: John Murray, 1832; reprinted ed., 
Birmingham, Alabama: The Legal Classics Library, 1984), p. 208. 

45. Henry Wheaton, Elements of International Law with a Sketch of History of the Science (Philadelphia: Carey, 
Lea & Blanchard, 1836; reprinted ed., New York: Da Capo Press, 1972), p. 47. 



Janis 155 

46. H.L.A. Hart, The Concept of Law (Oxford University Press, 1961), pp. 209, 226. 

47. Mark W. Janis, "Do Laws Regulate Nuclear Weapons?," Istvan Pogany, ed., Nuclear Weapons and 
International Law (New York: St. Martin's Press, 1987), p. 60. 

48. See id. at pp. 53-54, 59-61. 

49. Mark W. Janis, An Introduction to International Law (Boston: Little, Brown, 1987), pp. 229-30; Mark 
W. Janis, "International Courts and the Efficacy of International Law," Connecticut Journal of International 
Law, 1987, v. 2, p. 261. 

50. Max Weber, Law in Economy and Society (New York: Clarion; Rheinstein & Shills trans., 1954), p. 
13. 

51. Id. at p. 13. 

52. Nils Orvik, The Decline of Neutrality 1914-1941, with Special Reference to the United States and the Northern 
Neutrals, 2d ed. (London: F. Cass, 1971), p. 13. 

53. Id. at p. 16. 

54. A good account is in Holland, "Neutral Duties in a Maritime War," 1905-1906 Proceedings of the 
British Academy, p. 55. 

55. For example, in the 1982 Falkland/Malvinas conflict, the United States Court of Appeals for the 
Second Circuit found Argentina guilty of violating international law for "attacking a neutral ship in 
international waters, without proper cause for suspicion or investigation." Amerada Hess Shipping Corp. 
v. Argentine Republic, 830 F. 2d 421, 424 (2d Cir. 1987), reversed 109 S.Ct. 683 (1989). 

56. Fenwick, supra note 5 at p. 102. 



156 Law of Naval Operations 



Chapter VII 
Maritime War Zones & Exclusion Zones 

by 
L.F.E. Goldie* 



Q 



I. Introduction 

uestions of legality apart, nations' experience of maritime war zones 
or exclusion zones has demonstrated the utility of these juridical/ 
strategic devices for both offensive and defensive purposes. 1 For example, in 
World War I and in World War II both sides created prohibited war zones 
for offensive reasons. On the other hand, in the Russo-Japanese War (1904- 
1905), the Japanese Government created defensive war zones. 2 Similarly, both 
Argentina and the United Kingdom created what each belligerent claimed 
to be its defensive war zones in the Falklands ("Malvinas") Islands Conflict 
of 1982. 3 States declare maritime exclusion zones offensively when they seek 
to interdict shipping into a target state or port in order to embargo that 
country's trade, especially its trade in war materiel and food. They declare 
them defensively when they seek to interdict shipping, or selected types of 
shipping (for example, warships and merchant ships carrying military 
supplies, or acting as auxiliary naval ships), from entering approaches to the 
territory they are defending from invasion. 

With regard to offensively-oriented naval exclusion zones, the Commander's 
Handbook on the Law of Naval Operations (Naval Warfare Publication 9) 4 
correctly points out that, while the traditional rules of blockade required a 
"relatively 'close-in' cordon of surface warships stationed in the immediate 
vicinity of the blockaded area," 5 the contemporary development of weapons 
and tactics creates a situation which cannot be reconciled with this means 
of enforcement. NWP-9 continues: 

The so-called long-distance blockade of both World Wars departed materially from 
those traditional rules and were justified instead upon the belligerent right of reprisal 
against illegal acts of warfare on the part of the enemy. 6 

NWP-9 also points out the difficulties, indeed, impossibilities, of an in- 
shore blockade in light of modern weapon systems and platforms, 
"particularly nuclear-powered submarines, supersonic aircraft, and cruise 
missiles." 7 



Goldie 157 

Without committing itself as to whether contemporary methods and 
weapons for waging war at sea have brought about legal change in the context 
of the offensive use of restricted or prohibited war zones, NWP-9 concludes 
its discussion of this topic with the observation that: 

The [United States] blockade of Haiphong and other North Vietnamese ports [was] 
accomplished by the emplacement of mines, [and] was undertaken in conformity with 
traditional criteria of establishment, notification, effectiveness, limitation, and 
impartiality. 8 

While the mining of the North Vietnamese harbors may have observed 
some of the traditional, maritime, siege-type, requirements of blockade, 9 and 
complied with Hague Convention (VIII) Relative to the Laying of Automatic 
Submarine Mines 10 it did not entirely meet the traditional requirements of 
a close-in blockade since a blockading fleet "within visual range of the coast" 11 
was not constantly present outside those ports. Indeed, the system of "Market- 
Time" (which related only to the coast of South Vietnam) apart, the United 
States tended to rely on the air arm as well as on surface warships (under 
Operation "Sea Dragon") for purposes of blockading North Vietnam. 12 Also 
the use of floating mines activated by such agencies as sound and vibration 
was not in compliance with Hague Convention VIII. 

When reviewing the resort to maritime exclusion zones as instruments for 
justifying attacks against unarmed merchant ships, this paper will examine 
the strategies of the proclaiming states asserting rights to establish such zones. 
While both defensively and offensively used exclusion zones are instruments 
for logistical strategies, 13 that is, strategies directed to the denial of supplies, 
reinforcements, and replacements to the enemy, these may be conducted in 
terms of either "persisting" and "holding" or alternatively "raiding" 
strategies. 14 It will be a further thesis of this paper that to establish maritime 
exclusion zones merely for the purpose of implementing raiding strategies, 
whereby power is exercised not by the maintenance of control but by 
indicating an intention to engage in adventitious attacks on random shipping, 
is invalid. In addition, such a strategy involves a politically contradictory 
posture. Since the assumptions underlying policies of establishing exclusion 
zones include the need for effectiveness and persistence, the fortuitous nature 
of zones enforced only by raiding strategies reveal them as being only 
haphazardly enforced. Simply to enforce a zone at random times and engage 
in random attacks arises from the lack of an essential ratio of power to space 
and time which the sufficient mastery of the area and effective exclusion of 
the enemy require. Such a result can only be achieved by a persisting strategy. 
This calls for an adequate ratio of power to space and time such that control 
of the area can be completely assured. In addition to the issues of the strategies 
involved (that is, offensive/defensive; logistical/combat; raiding/persisting) 
there are, of course, other variables that need to be borne in mind: the 



158 Law of Naval Operations 

reasonableness of the zone both in size and in relation to the object(s) the 
proclamation(s) seek to achieve; its effectiveness in terms of contemporary 
weapons technology; and proportionality both in terms of the ratio of force 
to space and time and in terms of enforcement and sanctions. 

This chapter will review, first, the legality or illegality of prohibited or 
exclusion zones in terms of persisting and raiding strategies, that is, resort 
to either or both strategies in order to deny the enemy's access to the economic 
resources; and, secondly, in terms of such zones when they are resorted to 
for defensive persisting strategies which reflect their use "as a moat defensive 
to a house". 15 In this latter mode, the commander's object is to exclude the 
enemy's shipping from an ocean area on the presumption that the excluded 
ships may otherwise attack the state through, or across, the proclaimed zone. 
In all cases where these strategies are used, the issue of military utility, targets, 
and means and methods will be treated as essential to the analysis. 
Furthermore, the importance of the principle of distinction and of the 
obligation to respect non-participating, neutral shipping, will be stressed. This 
final criterion is variable and dependent on a number of factors such as the 
geographical location of the zone proclaimed, the density and quantity of the 
traffic affected, and the geographical extent of the hostilities. 

In the pages that follow a considerable emphasis will be laid on the use 
of maritime prohibited zones for purposes of carrying out, or attempting to 
carry out, logistical strategies. But, while there are possibly more striking 
examples of this (that is, logistical) use of the zones under review, it must 
be stressed that the zones are used for defensive and offensive combat 
strategies as well. In this latter (combat) connection they can be useful as 
adjuncts, rather like the use of mine fields on land or sea by an attacking 
force. Their function, in this last scenario, is that of diverting an adversary 
into a "killing ground." 

II. A Review of State Assertions of Maritime Exclusion 
Zones in Times of War or Armed Conflict 

A. The Russo-Japanese War, 1904-05 

The investigator today, seeing the proliferation of exclusionary zones in 
conflicts which have arisen from very divergent and disparate circumstances, 
may be surprised that there was little cavil regarding what has been 
denominated as the earliest declaration of such a zone. In the Russo-Japanese 
War, 1904-05, Japan established maritime defense zones which Hall described 
in the following terms: 

Prior to the outbreak of war with Russia, the Japanese Government empowered the 
Minister of Marine, or the Commander-in-Chief, ... to designate certain areas 
adjacent to the islands of the Japanese Empire as "Defense sea areas." . . . On and after 



Goldie 159 

the outbreak of war twelve or more of such areas were notified, the boundaries of which 
in some cases ran as far as ten miles from land. 16 

In enforcing these defensive zones by its persisting holding strategy, the 
Japanese Government evinced an adequate ratio of force to both time and 
space. This effectiveness enabled that country's naval forces to seize and 
condemn, as prize of war, the neutral French ship Quang-Nam on the ground 
of her presence within the prohibited area. 17 In addition to stressing the 
historical and legal importance of the Japanese Navy's persistently maintained 
and effective defense zones, note should aiso be taken of the establishment, 
in the Russo-Japanese War, of an early forerunner (created by the necessity 
of a then contemporary technological innovation of radio) of the 1982 British 
Moving Defensive Area (or "Bubble") concept 18 for the protection of her 
forces in the South Atlantic against both attack and intelligence-gathering. 
In the earlier conflict, namely the Russo-Japanese War, the British ship 
Haiman had been fitted with a DeForest wireless telegraph apparatus. She 
also had a representative of the Times of London on board. Messages were 
sent over this apparatus in cypher to Wei-Hai-Wei (at that time a British 
possession on the Shantung Peninsula of China and located close to the sea 
areas where both belligerents were conducting their naval operations). These 
messages were transmitted to London over a neutral cable and thus were 
available for newspaper publication. 

The Haiman was visited several times by Japanese warships and once by 
the Russian cruiser Bayan. She was instructed not to engage in broadcasting 
naval operations. Subsequently, however, as a result of the concerns of 
Admiral Alexieff, the Russian authorities in the Far East promulgated, on 
April 5, 1904, an instruction to the effect that correspondents broadcasting 
within the zone of operations of the Russian fleet should be treated as spies. 
The severity of the sanction imposed in the promulgation was adversely 
criticized in the British House of Commons. In the House there was general 
agreement that the Russian Admiral and the Czar's Viceroy in the Far East 
should, rather, have had recourse to the remedies for unneutral service 
(confiscation of the ship, her cargo, etc.), rather than accusing and punishing 
the offender for the capital crime of espionage 19 even if the correspondent 
had been found, contrary to the tenets of his profession, to be transmitting 
information to the Japanese authorities. It should be noted, however, that 
the debate only criticized the threat to resort to the extreme penalty, and 
did not question the authority of both fleets to restrict news gathering and 
dissemination on the high seas, despite neutrals' expectations that the 
belligerents would respect their journalists' right to enjoy those freedoms. 
Clearly, the belligerents' encroachments on the neutral states' privileges were 
acceptable, provided they remained reasonable and balanced as between the 
interests in play. On the other hand, Admiral Alexieff remained unmoved 



160 Law of Naval Operations 

by the neutrals' protests. Hence, the Russian position, since it threatened the 
extreme sanction of death (probably by hanging), 20 rather than the penalty 
appropriate for non-neutral service, should be treated as failing the 
reasonableness and proportionality tests. 

After declaring war on Germany in April 1917, the United States issued 
orders similar to the Japanese 1904 regulations. They controlled navigation 
in defined areas and around named American ports. These were maintained 
by an effective persistent holding and defensive strategy, despite the fact that, 
at some points the distance of the circumference of an area from a given center 
was as far as ten miles 21 (a similar distance to that in the Japanese orders). 
Regarding these orders, Hall observed that: 

The Japanese and American orders were based on the principle of defense, and it appears 
to be on such a principle that claims to establish war zones or areas of the high seas 
from which neutrals may be excluded can be supported. The legitimacy in any given 
case must be determined by circumstances. 22 

Hence it may be asserted that exclusionary zones created purely for 
defensive purposes, and provided they are persistently maintained and 
rendered effective by virtue of the ratio of power to space and time, and 
carry proportionate sanctions for breach, have for some time now, come to 
have been approved by the international community. This approval is testified 
to by the lack of protest or resistance to both the Japanese and American 
proclamations and an agreement among publicists that they fall within the 
test of reasonableness. 23 But today the types of exclusion zones calling for 
legal analysis involve more complex methods and tactics for enforcement, 
cover far larger sea areas, and are established for many more diverse ends 
than was the case with these early and relatively modest and straightforward 
forerunners. 

B. World War I, 1914-18 and The Interwar Period 

In World Wars I and II prohibited zones were set up by both sides for 
the purpose of staging a ruthless and almost effective aggressive logistical 
strategy. 24 Their objects were to blockade the enemy to bring him to his knees 
by starvation and the denial of war materiel. This is, of course, the complete 
opposite of the resort to exclusion zones for defensive purposes by the Japanese 
in 1904-05. As has already been pointed out, both of the blockades of World 
War I were denounced as illegal by their target (enemy) states. Indeed, while 
certain limited forms of maritime exclusion zones have, in recent years, been 
increasingly achieving recognition as lawful, in the period of the two World 
Wars and the interval between, only those maritime zones which were modest 
as to purpose and strictly limited as to area (such as those established by Japan 
in 1904 and the United States in 1917) were accepted as lawful. Hence the 
German unrestricted submarine warfare in the North Atlantic and the Anglo- 



Goldie 161 

American "Starvation Blockade" were claimed to have been justified by their 
executants as constituting appropriate reprisals. Indeed, it should be noted 
that the accepted doctrine and practice regarding belligerent reprisals has long 
been predicated on the otherwise unlawfulness of the conduct constituting 
the reprisal. That conduct becomes justified only by the previous unlawfulness 
of the adversary's original act. Despite its intrinsic illegality, the act of reprisal 
is claimed to be justified as a sanction against that prior illegal act and becomes 
legitimate as a means of putting pressure on the target state to desist from 
continuing in its prior unlawful conduct. 25 

The maritime exclusion zones created by the belligerents started with the 
stigma of unlawfulness mitigated only by the previous unlawfulness of the 
adversary's conduct giving rise to the drastic response of resorting to reprisals. 
Neither party, however, claimed that new weapons and tactics had given rise, 
as a matter of necessity, to the emergence of a customary norm justifying 
their prohibited zones. Furthermore, each side argued that the other's reprisal 
(that is, maritime exclusion zone) was illegal even as a reprisal. 26 In addition, 
an assertion of customary international law justification would, most 
probably, have been met with outrage and derision by the neutral states 
(which, down to April 2, 1917, included the United States of America). But 
the purpose of this chapter is to learn whether, since 1918, subjects of the 
international legal order have come to recognize, as customary international 
law, and aside from the very questionable arguments based on reprisals, at 
least some maritime prohibited zones which are established in time of war. 
Such an inquiry calls for the substantiation of criteria for establishing the 
validity of certain of these tactical and strategic devices. The point of referring 
to justifications predicated on reprisals was to indicate merely that neither 
party, and especially the United Kingdom, was prepared to risk that its policy, 
if failing the test of legality on the basis of the emergence of a customary 
norm, would draw upon itself the stigma of illegal conduct based on a spurious 
argument. But nowadays such arguments in terms of reprisals are, in light 
of emerging customary norms, largely anachronistic. 

(1) Traditional Blockade — A Time-Honored Logistical Strategy 
Revisiting the older and well established rules, the investigation which 
follows will begin with reviewing the legal institution of blockade as it had 
evolved over some two centuries previous to World War I, and had been 
defined, in the nineteenth century and early twentieth century, by treaty. 
Originally, the requirement was that a blockade to be valid and opposable 
to neutral shipping, had to be "close-in and, of course, persisting in terms 
of the necessary ratio of force to space and time." While weapons did not 
render such a blockade suicidal (as today's military arsenal clearly would), 
it was, in the heyday of sail, not without considerable risks and challenges 
to the blockading commanders. This is illustrated in a British naval historian's 
review of the "close-in" blockade of Brest during the French Revolutionary 



162 Law of Naval Operations 

and Napoleonic Wars reflecting as it did both a persisting holding strategy 
and a necessary ratio of force to space and time: 

Brest, where the principal fleet of the French was lying, commanded by Admiral 
Ganteaume is in the north-east corner of the Bay. Outside it is a rocky coast and a 
wicked stretch of sea, foggy, cold and stormy. Strong tides set through the narrow sounds 
inside the Isle of Ushant, and the prevailing wind, southwesterly, blows onshore with 
the whole of the open Atlantic behind it to build up a sea and swell. Even the sailing 
ships of modern times, such as they are, are advised to keep well offshore. Collingwood, 
who commanded the blockade in the '90s, had said that this coast was more dangerous 
than a battle once a week. 

Yet to keep the approaches to Brest under observation, Collingwood had to be close. 
Ships of the line in those days were unhandy vessels, slow to windward and slow to 
go about. Embayed on a lee shore with an incoming swell, they could never be sure 
of clawing off again. Caught in a calm, they were helpless against a tide that might 
set them into unnavigable sounds. Yet night and day, summer and winter, Collingwood 
and his captains stood off and on that shore, estimating the tidal streams and currents, 
constantly solving the problems of navigation and ship-handling — and not merely in 
a single ship, but in a whole fleet of them. No modern sailor would dare to explain 
how they did it; the art of sailing such ships is long forgotten. Even then, the achievement 
amazed the French, who looked out in every dawn and saw the sails there. There was 
only a single exception. In heavy westerly gales, they ran for shelter in Plymouth Sound, 
a hundred and fifty miles across the Channel — because in a westerly gale, the French 
could not possibly beat out of harbour. But whenever the wind showed signs of 
moderating, they Were back on station before the French could stir. 27 

But severe a challenge as the risks of winds, waves, tides and rocks were 
in the days of sail, they challenged, to a very high degree, proficiency in 
seamanship. They did not partake of the same order of inevitable 
destructiveness that would be the result if ships were to engage in a "close- 
in" blockade today, when modern-day airborne and submarine radar- 
directed, heat-seeking missiles, or other forms of the "smart" weapons of 
contemporary arsenals would doom the enterprise. The destruction wrought 
on H.M.S. Sheffieldby an Exocet missile (even though the ship was not engaged 
in any "close-in" blockade) during the 1982 Falklands Conflict illustrates the 
vulnerability of modern warships to even rather obsolescent, cheap and easily 
made post-World War II missile-type weapons. Furthermore, the sad error 
of U.S.S. Vincennes in July 1988 underscores the difficulties of command that 
modern weaponry can create. (Although the Vincennes was not involved in 
an official blockade, she was operating in a populous and geographically 
restricted area with busy air and sea lanes. The incident illustrates the 
technological/moral/and social problems with which a commander in a close- 
in blockade situation of today would be faced.) Finally, it is suggested that 
a persisting effective blockade, reflecting an adequate ratio of force to both 
space and time, can be achieved without literally complying with the 



Goldie 163 

nineteenth and earlier centuries' criterion for effectiveness of being "close- 

»> 
in. 

Again, technology has changed the exercise of the right of visit and search 

quite basically, as McDougal and Feliciano have pointed out regarding the 

present-day difficulties: 

It scarcely needs demonstration to show that the successful exercise of these procedures 
at sea, in the context of modern naval and air warfare, presents the most formidable 
difficulties. The warship attempting to stop, board and search a suspected enemy or 
neutral vessel becomes, in the course of such an attempt, highly vulnerable to air and 
submarine attack. Moreover, the size of present-day ocean carriers and the volume of 
cargo carried make any inspection of the cargo that goes beyond the perfunctory 
examination of shipping manifests practically impossible without modern dock 
facilities. 28 

The authors argue, accordingly, that the practice of diverting suspected 
merchantmen to designated control points that has arisen in response to the 
challenge that the foregoing difficulties have posed, is reasonable and hence 
valid. They argue, further, that the same rationale applies to the diversion 
of suspect vessels before or without the formality of a boarding to effect the 
visit and search on the high seas. 29 

In comparison, the 1856 Declaration of Paris authoritatively asserted that 
a state, to ensure that its blockade was valid and opposable to neutral ships 
captured as prizes of war for breaching the blockade, was obliged to ensure 
that its blockade was "really effective." 30 This obligation was repeated in 
the Declaration of London, 1909, 31 which, however, was never ratified by 
Great Britain and never entered into force as a binding instrument for any 
of the states that negotiated it. But a number of countries did evince 
considerable sentiment in favor of its terms, as exemplified, for example, by 
the United States' proposal in August 1914 that the belligerents comply with 
it. The Entente Powers found, on analysis, however, that Germany and 
Austria could import unlimited quantities of foodstuffs and other conditional 
contraband through the neutral state of the Netherlands (which took the view 
that the combination of her declaration of neutrality, together with the 
Convention of Mannheim of 1868 regulating the navigation of the Rhine, 
completely tied her hands). 

On the other hand, article 34 of the Declaration would permit an enemy 
of the United Kingdom to stop all exportation of food from a neutral state 
to that country. Indeed, it was prior to the outbreak of the First World War 
that intense public agitation in Great Britain against, inter alia, article 34, that 
had created so great an opposition to that country's signature, that it resulted 
in the United Kingdom Government's reversal of its position on the 
Declaration and in its refusal to ratify the agreement. 32 

This very serious departure by Great Britain and France in their statements 
of policy in August 1914 33 from the principles of the unratified convention 



164 Law of Naval Operations 

provided Imperial Germany with the basis for her claim to engage in her 
"long distance blockade" by means of indiscriminate submarine warfare, and 
of mining the approaches to the British Isles. The German submarine policies 
were stated to be reprisals against the British and French rejection of the 
1909 Declaration. 34 In reality the German submarine logistical strategy, which 
began with a smaller submarine fleet, in 1914, than that of the United Kingdom 
(28 for Germany and 56 for Great Britain) at the outbreak of war, 35 never 
ceased, despite the concentration of her naval effort on submarine warfare, 
to be a raiding logistical strategy carried out, even at its height of success 
(March-August 1917 36 ) by random attacks that were no better than raiding 
assaults and never could be effectively sustained by maintaining an adequate 
ratio of force to space and time. 

Contrariwise, the Entente Powers, on November 4, 1914, justified their 
long distance blockade, not as a legally permitted logistical strategy, but only 
on the basis of their claim to resort to belligerent reprisals — namely in 
retaliation for Germany's sowing contact mines in the open sea around the 
British Isles contrary to the Hague Mining Convention (Convention VIII). 37 
On the other hand, an alternative basis to the questionable one of belligerent 
reprisals might have been supported in terms of an emerging customary rule. 
The case for the Entente Powers' long distance blockade might have been 
argued in terms of the geographical expansion of the blockade owing to 
emerging technological exigencies coupled with a demonstration of its still 
being "truly effective," just as was the "close-in" blockade of the age of 
sail. Such a blockade could be shown to constitute a persisting logistical 
strategy with an adequate ratio of force to space and time. Hence it was 
effective within the meaning of paragraph 4 of the 1856 Paris Convention. 38 

(2) The Test of "Effectiveness" 

Although becoming increasingly anachronistic, given changes in weapons 
technology, the test of effectiveness was seen, for example, in the diplomatic 
exchanges during World War I down to April 1917, as a term of art deriving 
from the Paris and other Declarations and international agreements. Hence, 
effectiveness was frequently represented as requiring the positioning of a 
naval force on station, so that it prevented access into and egress from the 
zone (port, estuary, coast, etc.) blockaded. It was out of this requirement, 
in a time before radar, radio, aircraft, and submarines, that the notion 
developed that the test of "effectiveness" could call for a cordon of anchored 
men-of-war. But, as the experience of World War I showed, an effective 
blockade could be maintained at a considerable distance from the enemy's 
ports. For example, the Anglo-American mine barrier across the northern 
end of the North Sea provided as effective a blockade as did the presence 
of the British Grand Fleet in Scapa Flow to bottle up the German High Seas 
Fleet in the Jade River. 



Goldie 165 

If conduct which was regarded as impermissible becomes viewed as legally 
permissible, a new regime of customary international law must be shown to 
have come into being; provided that the twin requirements of a constant and 
"uniform usage practiced by the states in question, and that this usage is the 
expression of a right . . ," 39 are satisfied. In the case of a change in the 
detonations of the qualifier, "effective," such a new customary rule may well 
be justified on the basis of the confrontation of the reality of the new 
technology with traditional law, rendering obsolete the old rule of a close- 
in stationing of the blockading fleet. New situations and new weapons, 
through necessity, may be shown to have given rise to new practices that 
still satisfy the requirement of effectiveness, whose connotation remains 
unchanged; that is, it satisfies the requirement of being a persisting holding 
logistical strategy. In these circumstances necessity reinforces the mental 
element of determining the emergence of a customary rule. But, despite the 
resort by both sides in World War I to systems of prohibited zones in which 
neutral merchant ships would be controlled on the British and French side 
by surface forces (with an ever-increasing list of contraband being used to 
justify their seizure) and, on the other, by the threat of being sunk on sight, 
by the end of that war there was no consensus leading to any recognition 
of prohibited maritime zones as lawful. Indeed, a great negative reaction had 
set in, and while the British "Starvation Blockade" was widely denounced 
by publicists (and especially German scholars writing on the subject), the 
German indiscriminate submarine warfare was even more widely stigmatized 
for its ruthless inhumanity. 

The diplomatic interventions of the United States, prior to her declaration 
of war (April 2, 1917) against Germany in World War I, both in terms of 
her suggestions and proposals to both belligerents, and in terms of the 
diplomatic protests she lodged with both sides, are of considerable interest 
in evaluating the possibility of the emergence of a customary international 
norm. It is also germane to arguments that contemporary diplomacy operated 
with a strong negative impact on such a possible development. 

On August 6, 1914, the United States proposed to both of the belligerent 
coalitions that they should adopt the Declaration of London of 1909 as it stood. 
The Entente (in effect Great Britain and France) 40 announced that they would 
apply the Declaration, but with very serious departures from it regarding 
conditional contraband. Germany, on the other hand, notified the United 
States on August 22, 1914, that she was willing to apply the Declaration of 
London in its entirety. 41 On receipt of these replies the United States protested 
vigorously against the British Order in Council of August 20, 1914. Thus, 
on October 30, 1914, the August 20 Order in Council was cancelled and 
replaced by a further promulgation, making important concessions to the 
United States. But, on December 26, 1914, the United States made a further 
vigorous protest. While these early exchanges did not relate to "long distance 



166 Law of Naval Operations 

blockades" as such, they were soon followed up by United States proposals 
against that form of Allied control of neutral shipping suspected of trading 
with the Central Powers. On December 28, 1914, the United States became 
the spokesman of neutral powers and again protested against the systematic 
enforcement of the diversions of neutral ships which were required by the 
Entente's economic measures. The United States argued that those systematic 
diversions were tantamount to a general presumption that all diverted ships 
were carrying contraband, and that such a presumption was contrary to 
international law. 

Taking advantage of the neutrals' angry reaction to the Entente's system 
of diverting neutral shipping, and the Allies' rejection of the key articles of 
the Declaration of London of 1909 (for example article 34), Germany on 
February 18, 1915, promulgated her first declaration of indiscriminate 
submarine warfare. She claimed that this form of warfare was permissible 
as a reprisal against the Entente's refusal to abide by the Declaration of London 
and their systematic deviation of neutral shipping. She declared that any 
hostile merchant ship encountered in British or Irish waters, including the 
English Channel, would be sunk without warning. Neutral ships navigating 
in those waters were stated to be at risk, on the ground that merchant ships 
of the Entente had, on several occasions, hoisted neutral colors and "mistakes 
could not be avoided." 42 

(3) The Effect of the United States Entry into World War I 
In response to the German declaration of unrestricted submarine warfare 
in early 1915 the United Kingdom proclaimed the Order in Council of March 
11, 1915 (which was followed by the French decree of March 11, 1915). 
Regarding those promulgations, Guichard tells us that: 

Up to that date indeed France and England had confined their attention to contraband 
alone; from 11th March 1915 they held themselves free to bring into their ports any 
goods the destination, ownership, or origin of which was presumed to be hostile. In 
other words all direct trade between Germany and the Powers overseas was put a stop 
to.« 

Originally, this Order-in-Council was applied only to sea areas east of the 
15th degree east longitude and north of the 30th degree north latitude. 
Subsequently this zone was extended to sea areas east of the 30th degree west 
longitude. In effect, despite British and French insistence to the contrary, they 
had, in effect, created a maritime prohibited zone in relation to neutral vessels 
that they (the Entente Powers) believed to be trading with, or carrying goods 
to and from, the Central Powers. 44 Furthermore, they were able to maintain 
this logistical strategy with a persisting ability to hold the area and maintain 
it effectively. 

In March, April, and July 1915 the United States, in effect, charged the 
Entente Powers with illegally interfering with neutral commerce. On 
October 21, 1915, this country protested strongly against the steps that the 



Goldie 167 

Entente Powers had taken to interdict neutral trade with the Central 
Powers. 45 On July 7, 1916, moreover, the Entente Powers, over France's 
misgivings, abandoned their voluntary acceptance of the principles of the 
Declaration of London. But the period of United States' protests against the 
Entente Powers' blockade ended after her entry, on April 2, 1917, into World 
War I. Indeed this country brought a much needed, added, strength and 
guiding force to the Allies' blockade. Guichard tells us that: 

The attempts made to bring unity of direction between France, Great Britain and 
Italy had hitherto been unsuccessful .... Unity of direction which France had early 
asked for and which had been so conspicuously lacking was forced upon the allies by 
the economic policy of the United States. . . . 

.... However just about the time that inter-Allied cooperation in the economic war 
really became effective the blockade ceased to occupy the first place in the economic 
anxieties of the Allies. The German counter-blockade . . ., [their] achieved unity of 
action ... in respect of maritime transport, . . . [gave] them victory in the economic 
war. 46 

In the period 1914-17, and prior to the United States' entry into World 
War I, the Allied long distance blockade was in an evolving process. During 
that period it was the subject of diplomatic protests by the United States and 
other neutral countries such as the Netherlands, Denmark, Norway and 
Sweden. This latter group, consisting of minor powers having Germany as 
their neighbor, provided an economic protective arc around northern 
Germany. Their economic significance for Germany was greatly enhanced, 
as has already been noted, by the implications of the Declaration of London 
of 1909, 47 had the Entente Powers accepted the 1914 United States proposal 
to that effect. 48 While they supported the United States' position down to 
April 2, 1917, the Dutch and Scandinavian neutrals negotiated with the Allies 
prior to that date to ameliorate the impact of the blockade upon them in 
consideration for their limiting their exports to Germany. 

In reviewing the relations between the United States and the Entente 
Powers retrospectively from April 2, 1917, and comparing them, 
prospectively, with the United States' attitude after the German Emperor's 
second order of unrestricted submarine warfare on January 19, 1917, it must 
be said that the United States had a complete change of heart regarding the 
matter of the Entente's policy of imposing the long-distance blockade. Just 
prior to April 2, 1917, the United States' attitude toward Germany had been 
exacerbated by the German proposal to Mexico and Japan that they enter 
into an alliance against the United States (published on March 1, 1917). 49 With 
regard to the United States' wholehearted and energetic participation in the 
Allies' blockade of Germany and its reflecting a complete change of heart, 
Guichard wrote, regarding earlier American attitudes, "it is of course quite 



168 Law of Naval Operations 

true that in August 1914 the United States had exchanged some very tart notes 
with the Allies on the subject of economic war. . . . ,,5 ° 

After April 2, 1917, under the added pressure from the United States, the 
neutral states' adhesion to the Entente's economic policies became a matter 
of increased necessity. In addition, as a result of her economic pressures and 
deprivations, and of her sense of triumph as a result of her imposition of the 
Treaty of Brest-Litovsk on a prostrate Communist Russia, 51 Germany 
increased her demands, especially on the Netherlands. This had the result of 
European neutrals becoming more accommodating to the Allied and 
Associated Powers. Indeed, the famous affair of the "Dutch Convoy" in 
April-June 1918 clearly illustrated the Netherlands' acceptance of the Allied 
long distance blockade of Germany then in force. 52 The fact of the United 
States' participation in the long-distance blockade was all-important to the 
Netherlands' position. Without it her capacity to resist German demands 
would have been nil. 

C. World War II, 1939-45 

By contrast with the neutral protests, prior to April 2, 1917, against the 
Entente Powers' long distance blockade in World War I, the United States 
did not take a similarly adversarial position with respect to the Allied Powers' 
blockade of Germany in World War II. On the other hand, both the United 
States and the Soviet Union reserved their rights to claim compensation for 
possible future losses due to the Allied Powers' enforcement of their blockade. 

Such possible claims for compensation do not necessarily indicate 
compensation for denials of the other party's rights, but only that the Allies 
should pay for injuries to persons or property incidentally inflicted in the 
exercise of their blockade rights. After some three months into World War 
II, Great Britain and France reinstated what were, in effect, the principles 
of their long-distance blockade of World War I. Thus, after waiting for 
approximately three months, Great Britain promulgated her Order-in- 
Council of November 27, 1939. 53 Other neutrals, for example, Italy, 
protested. 54 After Italy entered the war on June 11, 1940, the system was 
extended to her. 55 While the Scandinavian countries also lodged protests early 
in the war, events overcame their positions after Germany invaded and 
occupied Norway and Denmark and effectively held Sweden in a 
hammerlock. 

Again, as in World War I, Great Britain justified her long distance blockade 
as a "retaliatory system." Additionally, in World War II, Great Britain felt 
her position regarding reprisals to be strengthened by the facts of Germany's 
violation of the London (Submarine) Protocol of 1936, her breach of Hague 
Convention VIII on minelaying, and her indiscriminate destruction of 
seaborne commerce between the Allies and neutral states. After Italy's entry 
into the War, Great Britain asserted the same right of reprisal against Italy 



Goldie 169 

as against Germany — on the ground of Italy's becoming associated with 
German methods of warfare. 56 It should be noted that while British and pro- 
British jurists and commentators were already discussing the idea of a long 
distance blockade, and were asserting that "Britain could not be expected 
to fight another war without resort to" 57 that form of economic warfare, 
the United Kingdom did not rely on any notion that such a system had emerged 
as a separate category in the customary international law of war. Instead, 
she merely had recourse, once more, to her "retaliatory system. " Her caution 
in this regard was, of course, largely due to her uncertainty about the attitudes 
of the United States and the Soviet Union and her policy of not encouraging 
those countries to challenge her system in the name of the freedom of the 
high seas. This delicacy was further motivated by the sobering realization 
of the strength of isolationism in the United States and the violent reversal 
of Soviet foreign policy to a much more pro-German stance, as evidenced 
by the fall of Litvinoff and the Molotov-Ribbentrop Non-Aggression Pact 
of August 1939, the Soviet partition of Poland with Germany, and the Soviet 
seizure of the Baltic States, as an outcome of Joseph Stalin's new pro-German 
orientation. 

In comparing the diplomatic protests served against the Entente Powers 
regarding their long range blockades in World War I with those issued in 
World War II, there would appear to be, quantitatively and qualitatively, 
a considerable decline, on the part of the neutral states, in their resorting 
to this form of resisting or rejecting the Allies' retaliatory system. This raises 
the question of whether decreased reliance on strong diplomatic protests in 
World War II as compared to World War I, may arguably be seen as the 
beginning of an acknowledgment, albeit reluctant, of their decreasing utility 
and necessity. But, again in World War II, as in World War I, the factors 
leading to the emergence of a customary international law norm justifying 
the long-distance blockades were camouflaged by both sides' invocations of 
reprisal as justification for their actions. 

D. Review of Developments Through World Wars I and II, and the Interwar 
Period 

To whatever extent decisions of international tribunals, or of domestic 
tribunals applying international law, have credibility, the decisional law has 
thrown an ambiguous light on the issue of the acceptance of such zones. 

First, it should be noted that the United Nations War Crimes Commission 
did not address the question of blockade by resort to aerial attacks on shipping. 
Aircraft, clearly, have limitations similar to those of submarines regarding 
any capability to visit, search, and seize ships. Possibly this omission could 
be explained by the fact that the Allied forces engaged in this activity to 
a greater extent than did the Axis Powers, largely due to their very much 
greater preponderance in the air. 58 



170 Law of Naval Operations 

But the question must be asked whether the fact of non-prosecution at 
Nuremberg for the indiscriminate sinking of merchant ships by aircraft was 
due simply to the fact that the United Nations had themselves engaged in 
this activity in World War II, knowing it to be illegal, and the United Nations 
prosecutors did not wish to have the conduct of their own military planners 
stigmatized as war crimes? Or, alternatively, did they so plan their cases 
because they had felt that long distance blockades had become lawful through 
general practice and acceptance and, further, because such blockades could 
lawfully be enforced by aircraft notwithstanding its limitations with regard 
to ensuring the safety of target ships' papers, passengers, and crews? 

The records of the Nuremberg proceedings regarding prosecution for the 
indiscriminate sinking of merchant ships by submarines to enforce maritime 
prohibited zones as war crimes are instructive. Although Admiral Doenitz 
was charged before the International Military Tribunal at Nuremberg with 
waging unrestricted submarine warfare contrary to the London Naval Treaty 
of 1930 59 and the 1936 Naval Protocol 60 (to which Germany had acceded), 
and although evidence was shown that, on September 3, 1939, the German 
U-boat arm began unrestricted submarine warfare, the Tribunal was not 
prepared to hold Doenitz guilty for his conduct of that form of submarine 
warfare against British armed merchant ships. In addition, after receiving 
evidence of British unrestricted submarine warfare in a maritime prohibited 
zone which the United Kingdom had established, namely the Skagerrak, 
following a British Admiralty announcement of May 8, 1940, and after noting 
Admiral Nimitz's answers to interrogatories which showed that the United 
States Navy had begun unrestricted submarine warfare against the Japanese 
in the Pacific Ocean immediately following the surprise attack on Pearl 
Harbor on December 7, 1941, the Tribunal announced that its sentence of 
Doenitz was not assessed on the ground of his "breaches of the international 
law of submarine warfare." 61 Thus the British diplomatic campaign, during 
the inter-War period, to outlaw the type of submarine warfare 62 to which 
the German Empire resorted in World War I, was not revived after World 
War II. It should be noted that while the British exclusionary zone in World 
War II was comparatively modest, being constituted by an arm of the North 
Sea, the Skagerrak, 63 the United States had declared the whole of the Pacific 
Ocean (one third of the Earth's surface) a prohibited zone in which Japanese 
ships, both naval and mercantile, would be sunk without warning. 

Finally, it should also be noted that some aggravated types of submarine 
attacks on civilian shipping in both World Wars were punished as war crimes. 
But these always involved conduct that was more reprehensible than merely 
that act of sinking the victim ship without warning. The war crimes cases 
arising from both World Wars that spring to mind illustrate the types of 
aggravated circumstances giving rise to the charges. These cases are: 



Goldie 171 

(1) The Llandovery Castle (World War I): 64 Submerged submarine U- 
boat 82 sank a hospital ship which was distinctly marked as such. The hospital 
ship was not carrying any military personnel other than sick and wounded 
soldiers and members of the Canadian Medical Corps. After torpedoing the 
hospital ship, the submarine's commander, one Patzig, ordered the U-boat 
to surface and, after questioning some of the survivors, fired on the survivors 
in lifeboats, massacring many of them. After the War Patzig was not found, 
but two of his officers were arrested, tried and convicted of their war crimes. 
The plea of superior orders was rejected because "killing defenceless people 
in life-boats could be nothing else but a breach of the law;" 65 

(2) The Peleus (World War II): The submarine commander ordered the 
massacre by machine-gun fire of the survivors who were clinging to pieces 
of wreckage from the sunken merchant ship; 66 

(3) Trial of Karl-Heinz Moehle (World War II): As in The Peleus, the 
accused had ordered the massacre of survivors of sunken ships and was 
convicted for that aggravated offense; " 67 

(4) Trial of Helmuth von Ruchtesschell (World War II): 68 The accused 
was the commander of an armed German surface raider. He was charged 
with committing, inter alia, the following offenses against Allied merchant 
ships: (a) continuing to fire after the target ship had signalled her surrender; 
(b) failure to make provision for the safety of survivors (despite having the 
facilities for taking prisoners on board his ship); and (c) firing at survivors 
in life rafts. 69 

E. The Falklands (Malvinas) Conflict, 1982 

In each of two conflicts fought in the present decade, namely the Falkland 
Islands Conflict (1982) 70 and the Persian Gulf Tanker War (1982-1988), 71 both 
sides promulgated Maritime Exclusion Zones. But their various definitions 
and uses have been very different. In the 1982 Falkland Islands Conflict a 
number of exclusion zones (seven in all) were proclaimed. The British 
declarations and the first two Argentinian zones reflected the desire of both 
sides to limit the conflict to the combat forces that they had committed to 
the struggle, to the Islands, and to the seas around them. The British resort 
to maritime exclusion zones was to further their persisting combat strategy 
of retaking and defending the Islands. Their persisting strategy was, in part, 
executed by raiding combat tactics. On the other hand, the Argentinian 
invocation of such zones (except her third, her May 11, 1982, proclamation 
of a "South Atlantic War Zone") 72 was for the purpose of reinforcing her 
persisting tactics once her raiding strategy had netted her control over the 
Falkland Islands. This appeared to be a corollary of the claim that each of 
the parties asserted, namely that it was merely exercising its right of self- 
defense, and was limiting its use of force to expelling its adversary from the 



172 Law of Naval Operations 

Islands, or to preventing that adversary from permanently establishing its 
territorial sovereignty over them. 

The first British announcement of a maritime exclusion zone (MEZ), took 
effect on April 12, 1982. It established the prohibited area as being two 
hundred nautical miles radius from a point approximately at the center of 
the Falkland Islands. Under this promulgation only Argentine warships and 
naval auxiliaries found within this zone were liable to be attacked. 73 On the 
following day Argentina responded by establishing a two hundred sea-mile 
zone off its coast and around the "Malvinas" (Falkland) Islands. Since the 
British fleet was still some distance from the Islands, the effectiveness, for 
the first week or so, of the declaration of the British Maritime Exclusion 
Zone had the effect, as a ruse of war, of reinforcing an unfounded Argentine 
belief that the Royal Naval nuclear submarine H.M.S. Superb was on station 
in the area of Puerto Belgrano and the Falklands. The fact that Superb was 
at Holy Loch, Scotland, at the time may give rise to the question whether 
the British "blockade" complied with the Declaration of Paris. 74 On this point 
Professor Levie has commented: 

The British declaration was not really a blockade, as merchant ships and neutral vessels 
were not barred from the exclusion zone; it only applied to enemy naval vessels. It 
was, therefore, nothing more than a gratuitous warning to Argentine naval forces. 75 

On April 23, 1982, the United Kingdom Government informed the 
Argentine Government that: 

Any approach on the part of Argentine warships, including submarines, naval auxiliaries 
or military aircraft, which could amount to a threat to interfere with the mission of 
the British forces in the South Atlantic, will encounter the appropriate response. All 
Argentine aircraft, including civil aircraft engaged in surveillance of these British forces, 
will be regarded as hostile and are liable to be dealt with accordingly. 76 

The zone enunciated in this second declaration has been referred to 
as "The Defensive Bubble." The Royal Navy, the British public and, 
indeed, the world, did not have long to wait to see this proclaimed 
"Defensive Bubble" put into lethal effect. On May 2, 1982, the British 
submarine Conqueror torpedoed and sank the Argentine cruiser General 
Belgrano some thirty miles outside the MEZ around the Falkland Islands. 
As a result, the British Government experienced some criticism in 
Parliament and in both the domestic and foreign press. In Parliament 
the responsible Minister (Mr. Nott) responded by pointing out that: 

That zone [that is, the MEZ proclaimed on April 12, 1982] is not relevant in this case. 
The "General Belgrano" was attacked under the terms of our warning to the Argentines 
some 10 days previously that any Argentine naval vessel or military aircraft which could 
amount to a threat to interfere with the mission of British forces in the South Atlantic 
would encounter the appropriate response. 77 



Goldie 173 

On April 28, 1982 the British Government announced its Total Exclusion 
Zone (TEZ), 78 to take effect on April 30, 1982. While occupying the same 
area as the MEZ of April 12, this zone also encompassed "any . . . aircraft, 
whether military or civil which is operating in support of the illegal 
occupation" of the Falkland Islands. 79 It continued with the further warning 
that: 

Any ship and any aircraft, whether military or civil, which is found within this zone 
without due authority from the Ministry of Defence in London will be regarded as 
operating in support of the illegal occupation and will therefore be regarded as 
hostile. . . . 80 

Finally, it should be noted that in all her announcements of the delimitations 
of her specific zones Great Britain still continued to insist that they were 
without prejudice to her general right of self-defense under Article 51 of the 
United Nations Charter. This provided a further legal justification for the 
sinking of the General Belgrano. Criticism of that attack may be further seen 
as paradoxical considering that, at the time of the sinking, the Argentinian 
forces were occupying the Islands and the British forces were forcibly 
attempting to terminate that possession. 

The United Kingdom's Ministry of Defense announced an important policy 
statement on May 7, 1982, when it said that, because hostile forces "can cover, 
undetected, particularly at night and in bad weather," 81 the distances involved 
in resupplying the Argentine forces on the Falkland Islands, or take other 
hostile action, "any Argentine warship or military aircraft which are found 
more' than 12 miles from the Argentine coast will be regarded as hostile." 82 
The Soviet Union, without protesting the creation of an exclusion zone in 
principle, advised the British government that it considered the latest 
statement of policy unlawful, "because it 'arbitrarily proclaimed] vast 
expanses of high seas closed to ships and craft of other countries.' " 83 On this 
Professor Levie has commented: 

Of course, a blockade always denies the use of part of the high seas to other countries. 
While the Soviet Union might have questioned the extent of the blockaded area as 
excessive, if the blockade was effective (and there seems little doubt that it was), it 
was a valid blockade under the 1856 Declaration of Paris, to which Russia was one of 
the original parties. 84 

On the other hand, if the Soviet criticism is directed against the 
proclamation on the basis of its ineffectiveness due to an insufficient ratio 
of force to space, a point not answered in Professor Levie 's comment, it would 
appear to be factually inaccurate. Adequate force appeared to be present 
wherever needed to carry out the enforcement of the British maritime 
exclusion zones for effectuating that country's logistical strategy. 
Furthermore, the area was not so vast as to be unmanageable in fact, and 



174 Law of Naval Operations 

the proclamation appeared to have been enforced by persisting holding, rather 
than raiding, tactics. 

After the Argentine forces on the Falkland Islands had surrendered, Great 
Britain lifted the Total Exclusion Zone (July 22, 1982), but, at the same time, 
asked the Argentine Government (via the Swiss Government) not to allow 
its military aircraft or warships within a zone measuring 150 sea miles radius 
around the Falkland Islands. Similarly Argentina was warned not to allow 
her civil aircraft and shipping within that zone without the prior agreement 
of the British Government. 

In response to the British MEZ on April 8, 1982, Argentina proclaimed 
a similar Maritime Zone, and, on April 29, 1982, it strengthened its MEZ. 
Finally it proclaimed, on May 11, 1982, a "South Atlantic War Zone." This 
last declaration has been the occasion of well-known litigation. In Amerada 
Hess Shipping Corp. v. Argentine Republic* 5 the plaintiff corporation sued 
Argentina for the loss of its very large oil tanker Hercules as a result of three 
successive air strikes by Argentine aircraft using bombs and air-to-surface 
missiles. At the time of the attack the Hercules was "about 600 miles off the 
Argentine coast and nearly 500 miles from the Falkland Islands." 86 The court 
added that she was "in international waters, well outside the "exclusion 
zones" declared by the warring parties." 87 

While that statement would have been true if it had referred to the British 
zones and those declared by Argentina on April 8 and April 29, 1982, it was 
of doubtful accuracy with regard to Argentina's "South Atlantic War Zone" 
which that country declared on May 11, 1982. It is a valid inference, therefore, 
that the court may have been prepared to recognize Argentina's first two 
declarations as creating valid exclusion zones, but it was not prepared to 
extend that recognition to the vaguely defined "South Atlantic War Zone." 88 
Indeed, this last zone, regardless of the bombing of the Hercules, fails the tests 
of reasonableness, proportionality, clarity of definition, and self-defense. It 
merely proclaimed the basis for a random, raiding logistical strategy. It clearly 
failed to provide for an adequate ratio of power to space and time, and 
amounted to little more than an excuse for conducting indiscriminate attacks 
on neutral shipping, rather than formulating an effective logistical, persisting, 
holding strategy which could be integrated in a sea-keeping assertion of naval 
power utilized for rational ends. 

F. The Persian Gulf "Tanker War" 1980-1988 

Although the Iraq-Iran war began with the border clashes in June-August 
1980, leading to full-scale land fighting on September 21, 1980, 89 the Persian 
Gulf Tanker War, as a specific logistical strategy in an array of means and 
methods for conducting hostilities in the Gulf, may be said to have begun 
with the Iraqi declaration on August 12, 1982, of a prohibited war zone 



Goldie 175 

at the northern end of the Persian Gulf (north of 29° 03' North). 90 In contrast 
with the Falklands (Malvinas) Conflict, which took place in an unfrequented 
and secluded part of the world, the Persian (or Arabian) Gulf is one of the 
world's busiest waterways. The original (August 12, 1982) Iraqi prohibited 
war zone contained the northern end of the Gulf. In reality, however, this 
zone was not so much one of exclusion, supported by a persisting logistical 
strategy, as the proclamation of an intention to engage, as opportunities 
offered, in random air raids to inhibit Iranian shipping in the Gulf. 
Subsequently, the zone's area was enlarged so as to include the key Iranian 
oil installations on Kharg Island. In February 1984, this was expanded to 
include a 50-mile radius around Kharg. Until early in 1984 the Iraqis 
concentrated their attacks on ships navigating in the northern zone and 
sailing to and from Bandar Khomeini and Bandar Manshar. But after early 
1984 they concentrated their air strikes on ships sailing to and from Kharg. 

The Iraqi logistical strategy was clear. Like Napoleon's Berlin and Milan 
Decrees against Great Britain (which were directed against British trade and 
that country's ability to wage war and subsidize her allies from her income 
from that trade), the object of the raids was to deny Iran the income she 
needed from oil exports in order to purchase war materiel abroad and, 
generally, defray her costs of waging the war. 

Iran had a similar logistical end in view, namely that of suppressing her 
enemy's trade with third countries which enabled Iraq to earn the money 
needed in order to defray her cost of waging the war. This prevention of 
trade was executed by means of interdicting all and any navigation to and 
from Iraqi ports in the Gulf. But Iraq was able to export her oil, and so defray 
the costs of her belligerency, by pipelines across her western and southern 
neighbors. In addition, Iran also established prohibited zones off the shores 
of Iraq's backers in the war, for example, Kuwait and the United Arab 
Emirates, in the hope of reducing their oil revenues and hence their 
contributions to Iraq's war effort through limiting her purchasing power on 
the world arms markets. 

Responses to Iranian attacks launched in support of this policy included 
the United States policy of reflagging Kuwaiti tankers, establishing convoys 
with United States, British, French, and Italian escorts, and bringing the 
issue of the unlawful interference with neutral flag shipping to the attention 
of the Security Council of the United Nations. All these steps did not 
prevent continued Iranian raids on neutral flag tankers. Nor, indeed, did 
the Saudi Arabian proclamation of a 12-mile safety corridor which, since 
it was within the territorial seas of the seven states of the Gulf Cooperation 
Council, was entitled to belligerent respect, and was intended to provide 
security for neutral shipping — especially the very large tankers carrying 



176 Law of Naval Operations 

oil from Kuwait and from other supporters of Iraq. But this raised no legal 
issues regarding its validity as a maritime zone, since it merely created a 
right-of-way for neutral ships in neutral states' territorial waters. 

The legal issues involving the Iraqi and Iranian exclusion zones, and the 
attacks on shipping therein, depended very largely on the reasons for those 
promulgations. Clearly they were not promulgated, as were the Japanese 
proclamations of 1904 and those of the United States of 1917, for purposes 
of self-defense, nor for the furtherance of persisting or holding strategies. 
They were announced for purposes of inhibiting shipping in the Gulf from 
engaging in the oil export trade of each belligerent's adversaries and their 
supporters by means of random attacks. They reflected offensive raiding 
strategies having only adventitious impacts on possible target shipping. 

Similar to the experience in World Wars I and II, especially early in 
World War I when neutral shipping was attacked, the neutral states 
protested and denounced the attackers. In contrast to those earlier conflicts 
however, it should be noted that both Iran and Iraq made neutral ships their 
main targets. Furthermore, Iran not only attacked neutral shipping which 
may have been suspected of earning revenues, either directly or indirectly, 
for Iraq, but also neutral ships when they were navigating between neutral 
ports or even fishing in the Gulf. This, indeed, places the Iranian policy 
well beyond what may possibly be seen as defensible by supporters of an 
emerging customary international law permitting the establishment of 
effective exclusionary zones maintained persistently by an adequate ratio 
of power to space and time. Even when satisfying these criteria, such a 
zone may be lawful only if it is, comparatively speaking, maintained 
effectively and complies with the rule of reasonableness. It may not provide 
an excuse for a raiding strategy directed randomly against any or all non- 
Iranian shipping found in the Zone without regard to their nationality or 
to their purpose for being in the Zone. 

There is a further consideration: Although the belligerents have not been 
subjected to the severe and hostile criticism that may have been expected, 
or that was the experience of the belligerents in World War I, the neutral 
states' muted outrage may not be due to their tacit acceptance of a new 
customary rule exposing them to random, raiding attacks. Rather, their 
relative silence may be attributed to the fact that the very large tanker surplus 
fleet (and threat of an oil surplus as well) and the favorable conditions of 
insurance in the 1980's rendered such attacks relatively less unacceptable to 
the tanker fleets' owners than did such attacks during the World Wars, when 
they resulted in a great scarcity both of shipping and of the cargoes those 
sunken ships had carried. 



Goldie 177 

III. Review of Some Relevant Concepts Relating 

to the Emergence of Customary 

Principles of International Law 

Governing the Establishment of Maritime Exclusion 

Zones in the Context of the 

Resort to the Use of Force 

A. Custom and the Emergence of Belligerent Maritime Usages and Obligatory 
Rules 

Customary international law is formed from a combination of "a constant 
and uniform usage practised by the States in question" 91 and the essential 
psychological element of opinio juris sive necessitatis. 92 Because, for so long 
maritime states have stressed, as fundamental to their survival, the freedom 
of the high seas, belligerents' claims to enforce maritime exclusion zones must 
be carefully balanced against the traditional and basal doctrine and the 
interests interpreting it. Assertions that the power to create such zones has 
emerged into customary international law demand rigorous criteria for 
justifying their promulgation by warring states. Indeed, a case-by-case 
approach is required. On the other hand, it should be observed that the 
creation of such zones has arisen, in part, from the development and 
deployment of new weapons, from the evolution of new tactics, and from 
the emergence of economic warfare as an important, indeed essential, 
weapon. Thus, they have been resorted to for the purposes of both combat 
and logistical strategies. 

The dual essentials of usage and the actor's belief in the right or necessity 
of acting in the prescribed manner hold equal sway as criteria for determining 
the emergence of a customary law doctrine or privilege. 93 Furthermore, when 
these are consistent with the fundamental right of self-defense, and satisfy 
the rule of reasonableness, their potential interference with a neutral state's 
traditional rights under the freedom of the high seas may be justified. On 
the other hand, if they are implemented by raiding strategies, even if for the 
purpose of self-defense and even if they may satisfy the criteria of 
proportionality and the rule of reasonableness, they may not, ceteris paribus, 
be justifiable. Customary international law cannot recognize a belligerent 
right which is ineffective and which permits an actor to fail to lay an even 
hand on those regarding whom it has the right or privilege of imposing its 
regime. Thus a maritime exclusion zone which is only enforced sporadically 
or randomly merely by raiding tactics should not be seen as entitled to 
recognition as lawful under customary international law. 

The practice of declaring maritime war zones or exclusion zones arose, 
as Professor Stone has pointed out, from the necessities of the situation 
confronting, not only the United Kingdom, as Stone argues, but Germany 
as well. The reliance by both sides on invoking belligerent reprisals 



178 Law of Naval Operations 

camouflaged the "long term transformation of the traditional laws of 
blockade." 94 The question, however, remains, what values apply to legitimate 
that transformation and what values will reject either or both claims to 
validity? It is, furthermore, a thesis of this paper, that these two disparate 
types of war zones are not utilized symmetrically. Indeed, while the former 
is based on an effective persisting holding logistical strategy the latter is based 
on a raiding logistical strategy. In contrast with positions such as those taken 
by Stone or Fenrick, this paper views these unlike devices in aid of strategy 
as not being entitled to be treated as alike juridically. Indiscriminate sinkings 
of merchant ships by the U-boat arm as the main means of pursuing a raiding 
logistical strategy cannot claim to fit under justifications which may uphold 
the legality of the persisting logistical strategies reflected in the Long Distance 
Blockades by, respectively, the Entente Powers (in World War I) and the 
United Nations (in World War II). The two modes of waging economic war 
and the strategies by which they were pursued were so different that it would 
be absurd to invoke arguments and evidences justifying the latter to validate 
the former. 

Necessity is also reflected in the changed circumstances of modern 
economic warfare. Technological change, in the form of the ever-increasing 
destructiveness of modern weaponry, has created new challenges for the 
international law of armed conflict. Furthermore, the strategic challenges 
presented by the contemporary development of advanced nations' economic 
infrastructures have called for new responses in terms of economic warfare 
which, in turn, have created new challenges for the international 
humanitarian law relevant to their deployment and use. When the rules of 
blockade were first evolved, most European states relied quite heavily on the 
coastal maritime transportation of their goods, even for domestic and internal 
trade. At that time contraband and blockade control was relatively simple 
because goods would pass from port to port by sea and their destination would 
be revealed by their movement even if transshipments were involved. Today 
most states, even such states as Iraq and Argentina, have extensive waterways 
and railways for internal and international transportation. By rail Iran can 
be supplied from the Soviet Union and by highways from China and Pakistan. 
Writing of such an expansion of states' economic infrastructure as this factor 
existed back in the time of World War II, Julius Stone wrote: 

The expansion of alternative rail and inland waterway transport facilities, with which 
Germany was superlatively endowed, transformed this situation. "The conditions of 
modern commerce offer almost infinite opportunities for concealing the real nature of 
a transaction, and every device which the ingenuity of the persons concerned or their 
lawyers could suggest has been employed to give shipments intended for Germany the 
appearance of genuine transactions with a neutral country." 95 

B. "Necessity" in the Formation of Customary International Law 

While some writers 96 tend to denigrate the role of "historical" or "social" 



Goldie 179 

"necessity" as a possible alternative, or additional, element of opinio juris, the 
argument here is that changes in the technological and social infrastructure 
of a social relationship operate to bring about legal change, not so much under 
the rubric of opinio juris, as under that of its disjunctive 97 clause sive necessitatis. 
This disjunctive meaning would appear to be inherent (but to most writers 
latently so) in the traditional Latin formulation. 

The second step, in reviewing the relevance of the criteria for determining 
the incremental effect on legal change of the technological and socio- 
economic substratum, is to observe that an emerging custom may tend to 
displace existing rights assured under international law. For example, the 
continental shelf doctrine was criticized, in its early years, as potentially 
displacing the traditional, and entrenched, freedom of the high seas — for 
example, the traditional rights of trawling, dredging and anchoring anywhere 
beyond states' territorial seas. Thus, Professor Humphrey Waldock, later 
President of the International Court of Justice, observed, on April 5, 1950, 
that: "[t]he suggested new doctrine of the continental shelf is not merely novel 
but involves a reversal of existing customary [international] law." 98 But this 
consideration did not prevent Waldock from arguing in favor of recognizing 
that now popularly accepted, but then emerging, doctrine as customary 
international law. 

Even more significantly, and regardless of the strategies involved (i.e., 
persisting and hence "effective", or raiding, and hence, random and thus 
proportionately ineffective), the recognition of states' claims to establish 
Maritime Exclusionary Zones as lawful will always necessarily be effectuated 
at the expense of freedom of the high seas for all navigation including, to 
the extent necessity may limit them, the rights of neutral traders. In this 
regard, of course, belligerent maritime war zones, or exclusionary zones, 
which are usually intended to last the duration of the conflict, are to be 
distinguished from the usually more transient, maritime exclusion zones that 
states establish for bombing and gunnery exercises in times of peace. They 
(i.e., belligerent maritime exclusion zones) are also to be distinguished from 
those maritime zones which states announce for the testing of nuclear devices 
and weapons. These, with perhaps one exception, that of France 99 in recent 
years, have been predicated, not on an enclosure of an area of the oceans, 
but on the principle of a "Warning to Mariners." This device simply notifies 
aircraft and ships proposing to use the area of the dangers to them attending 
the notifying state's exercise of its own freedom of the high seas. It should 
be stressed, in this context, that such warnings may be brief, or may remain 
in place for indefinite periods of time. 100 Clearly, the task of establishing the 
emergence of a customary rule permitting belligerent states to impair, if not 
eliminate, the rights of neutrals to enjoy the freedom of the high seas is far 
more burdensome than defending the privilege of states, in the pursuit of their 
national security interests, to create temporary dangers for shipping in limited 



180 Law of Naval Operations 

sea areas, by testing weapons on the high seas or engaging in bombing and 
gunnery practice and by issuing warnings to others of the presence of those 
dangers. 

C. The Legal Significance of Diplomatic Protest as an Inhibiting Factor in the 
Formation of a Customary Norm 

Diplomatic protest has been seen as an inhibitor of custom, and writers 
have suggested that its absence can be strong evidence of acquiescence to a 
change in customary international law and, hence, to the emergence of a new 
norm supplanting and negating the old. 101 But, as D'Amato points out, states 
"do not issue notes of protest to the actions of other states that they regard 
as illegal under international law," and argues that "[f]oreign offices which 
did so would have little time for anything else." 102 He also maintains the 
interesting thesis that reliance on this procedure as a factor in the making 
or the restraining of the formation of customary international law is too 
narrow and more restrictive than necessary for the recognition and validation 
of new rules. He points out, on the contrary, that the sources and the flow 
of decisions in the process of forming a new customary norm of international 
law is much more flexible and pluralistic. He states, and this writer agrees 
fully with his argument, that: 

This diplomacy is usually conducted verbally by ambassadors, representatives, consuls, 
visiting businessmen, and so forth. The range of negotiating tactics is quite vast, including 
threats to corporate assets of the other country's nationals that are located in the 
complaining state, retaliation by raising tariff barriers, reduce foreign economic or 
military aid to the target state or its allies or dependents, support another country's 
hostility to the target state, vote against the target state in the United Nations, and 
related threats or warnings. 103 

The fact that the United States, the major protesting state against the 
creation of prohibited zones (or war zones) in both World Wars, embraced 
the policy of creating them after becoming a participant in both, tends greatly 
to undermine the significance of both sets of her protests. In any event, and, 
in addition, following the principle that "actions speak louder than words," 104 
the United States' affirmative policy regarding maritime exclusion (war) 
zones after she became a belligerent should carry more weight than her 
previously published protests as a neutral. It should be noted, too, that in 
World War II, while neutrals such as the Netherlands and Norway regarded 
the British resort to maritime exclusion zones as contrary to international 
law down to May 1940, thereafter these two countries, through their 
governments-in-exile, supported such zones, as did the United States after 
its entry into World War II. In light of the subsequent conduct of the states 
that engaged most vociferously in voicing their diplomatic protests against 
the declaration of maritime exclusion zones, the conclusion may be drawn 
that the diplomatic protests lodged against the declaration and enforcement 



Goldie 181 

of exclusion zones established by the Entente Powers in World War I as well 
as the United Nations in World War II are of dubious efficacy and carry 
little or no weight in restraining the emergence of a customary international 
law norm legitimizing maritime exclusion zones. This is the case despite the 
fact that these regimes in their various forms, encroach upon the doctrine 
of freedom of the high seas and despite their effect of curtailing the traditional 
rights and immunities of neutrals. 

With regard to the diplomatic reaction to the British Total Exclusionary 
Zone of April 30, 1982, the Soviet Union, as has been noted, 105 took a critical 
stance. But, because the Soviet Union was the only non-belligerent that 
complained about the TEZ and, furthermore, because the British did not 
attack any neutral ships within the zone, it would appear that most interested 
states acquiesced in it as reasonable. Nor did the Soviet Union have any more 
than a theoretical basis for its academic comment. That is, she engaged in 
the relatively unusual, according to Professor D'Amato, act of protesting 
without being injured and on the basis, merely, of a theoretical disagreement 
with the British announcement. 106 The Soviet Union had received no injury 
in fact, and hence the basis for its diplomatic protest may be questionable. 
Finally, because the Soviet Union's mode of characterizing the zone did not 
accurately reflect the British policy of ensuring safeguards for neutrals, 107 the 
Soviets' protest cannot be regarded as having significantly effective validity 
in restraining the emergence of customary international law norms on the 
subject. 

IV. Customary Law and the Usages of War: 

the Substratum of Modification and The 

Relevance of Military Utility 

A, Relativism, Military Economy 108 and the Role of Law 

The Romans may have believed the maxim inter arma silent leges, but today, 
unless a contest becomes "absolute" 109 in the Clausewitzian sense or "total" 
in the nuclear holocaust sense, there are, necessarily, areas of common interest 
where the principles of humanity, reciprocity and utility have important 
functions. In addition, as has already been observed, the value of military 
economy, 110 which provides the sound basis for planning any campaign, gives 
rise to a second development, namely the mutual respect of common restraints 
as a matter of common interest. In his defense of the utility of international 
law, Sir Hersch Lauterpacht pointed out: 

At the same time, in view of the humanitarian character of a substantial part of the 
rules of war it is imperative that during the war these rules should be mutually observed 
regardless of the legality of the war. For it is these rules which, on the whole, have 
been generally observed in the past — for the reason perhaps that they do not seriously 
interfere with the achievement of the major purpose of the war. 111 



182 Law of Naval Operations 

Indeed, building upon Lauterpacht's thesis, it is possible to say that in all 
wars, except those that Clausewitz identified as "absolute " (and considered, 
in the pre-nuclear age in which he lived, to be impossible to wage 112 ), the 
interest of both or all belligerents is that rules which temper the ferocity of 
waging war, and especially those that confer a benefit in terms of military 
economy, should be observed. This prudential economy of force is not so much 
a matter of a warrior's self-image as being sans peur et sans reproche, as of military 
utility and each belligerent's self-interest in expending the minimum of force 
for achieving the object of the contest and of maintaining a reserve of force 
to meet further contingencies. 113 Furthermore, Clausewitz accepted the fact 
that the inherent "frictions," 114 "checks," and "modifications" inherent in 
"the apparatus of War," and "the non-conducting medium which hinders 
the complete discharge" 115 of belligerent powers (energy), acted as restraints 
on focusing the complete direction of energy, without any diffusion, onto 
the object of the war itself. In addition, in our own day, we have come to 
call, not for the "utmost use of force," 116 but "limited" applications of force 
in the sense that the whole power of the state is not concentrated into an 
all-consuming effort of will to which all other considerations are 
subordinated. For it is highly probable (or well-nigh inevitable) that the more 
intense becomes the focus of the will to win the greater will be the temptations 
to flout relevant rules of international law, especially if these are perceived 
as restraints on the will to victory. While soldiers and statesmen are mistaken 
in perceiving the rules of international law as adding to Clausewitz 's "non- 
conducting medium" acting as a restraint on the complete direction of energy, 
the possibility of their doing so may render the atmosphere of all-out effort 
inimical to the observation of lawful conduct. 

B. Limited War: When Militarily Viable and, at the Same Time, Receptive of 
Humanitarian Law 

Von Clausewitz tells us that political ends may decree that a precise balance 
should be struck between means and ends. 117 While not resorting to the "utmost 
use of force," a country waging a limited war must yet master its enemy within 
the limiting frame of that type of warfare. The commander should act "to a 
certain extent upon the principle of only applying so much force and aiming 
at such an object in War as is just sufficient for the attainment of its political 
object." 118 Experience also illustrates this point. For example, Professor Levie 
has pointed out that the 1982 Falkland Islands Conflict provided an example 
in which the fighting was kept within bounds so that the future of the laws 
of war, having the traditional effect of temperamenta belli, remained quite bright, 
since in that conflict, the localization of the hostilities, which was assisted by 
the proclamations of six of the seven exclusion zones, kept the war "a 
gentlemen's war". 119 A geographically more diffuse conduct of the hostilities 
would have led to much more violent and destructive operations, indeed to those 



Goldie 183 

political frenzies which undermine the will to observe the laws of war in an 
obsessive determination to triumph at all costs. 

The thesis presented here is that, first, we should view the intensity of the 
war in which the issues of legality arise as a possible variable influencing the 
willingness of each of the combatants to see its own interest in abiding by the 
rules of war. Thus, for example, as Professor Levie tells us, a limited war at 
sea may be one in which the rules of war are observed and developed by new 
conditions. But some wars, for example such wars of national liberation as the 
Algerian revolt against French colonial rule, were, at least according to some 
writers, limited wars, yet were redolent with inhumane excesses. Thus a 
military commander present in Algeria during the uprising there that led 
eventually to independence, and who had a crucial counter-insurgency role to 
play, has confirmed that such wars are not, and cannot, of their nature be, 
"gentlemen's wars," but ones of terrorism, widespread atrocities and genocide. 
Those crimes were not (in the Algerian context) committed so much on the 
part of the incumbent government, which usually had to work under the eyes 
of the press, television news and the public, but rather by the insurgent groups. 
Thus, that officer (the author Roger Trinquier) wrote: 

In the month of September 1958, the forces of order took possession of the files of a 
military tribunal of one of the regions of the F.L.N. In the canton of Michelet alone, 
in the arrondissement (district) of Fort-National in Kabylie more than 2,000 inhabitants 
were condemned to death and executed between November 1, 1954 and April 17, 1957. 120 

In many wars, be they the "total" wars as exemplified by the two World 
Wars, or certain "local wars" such as, for example, the Iran-Iraq War (1980- 
1988), or wars in which terroristic insurgencies pit themselves against 
incumbent regimes, the parties' adherences to the laws of war become 
subordinated to their all-absorbing, indeed obsessive, struggle for survival. 
But in between the two extremes of "gentlemen's" limited wars on the one 
hand, and the self-imposed limitations of an incumbent regime in its fight 
against terrorism on the other, there do exist, owing to a possibly prevailing 
political climate between the adversaries, considerations for statesmen who 
see beyond the conflict itself to the post-war settlements. When such a 
prudential far-sightedness prevails, wars may be waged in truly limited modes 
and are subjected by their participants to the governance of the laws and 
usages of war. Of these the Sino-Japanese War of 1894-95, the Russo-Japanese 
War of 1904-04 and the 1982 Falklands Conflict provide practical models. 

C. Emergence of the Maritime Exclusion Zones as Customary Law: A Matter 
of Contexts 

(1) General Recapitulation 

At the outset of this chapter the presentation was in terms of the emergence 
of maritime exclusion zones in the context of the famous long distance 



184 Law of Naval Operations 

blockades of World Wars I and II. These were reviewed in terms of the 
distinct, but frequently overlapping, criteria of defensive versus offensive 
objectives and of persisting versus raiding combat or logistical strategies and 
tactics. The survey of these regimes began with the Japanese defense zones 
in the Russo-Japanese War of 1904-05 and the United States defense zones 
which were established in April 1917 on the model of the earlier Japanese 
zones. While those defense zones may be regarded as having the status of 
accepted custom, the more controversial long-distance blockading, prohibited 
maritime zones or logistical strategies may not yet appear to have received 
unqualified, universal endorsement of legality. But, subject to the test of 
proportionality and reasonableness, and especially when created for purposes 
of maintaining a persisting logistical strategy supported by an adequate ratio 
of force to time and space, they may appear to be moving conditionally into 
the light of recognition as customary international law. Writing in 1952, Sir 
Hersch Lauterpacht stated: 

[MJeasures regularly and uniformly repeated in successive wars in the form of reprisals 
and aiming at the economic isolation of the opposing belligerent must be regarded as 
a development of the latent principle of the law of blockade, namely, that the belligerent 
who possesses the effective command of the sea is entitled to deprive his opponent of 
the use thereof for the purpose either of navigation by his own vessels or conveying 
on neutral vessels such goods as are destined to or originate from him. 121 

In contradistinction from Sir Hersch Lauterpacht 's thesis, the argument in 
this chapter is that, for the evolution of an even-handed, predictable system 
governing exclusion zones, it is necessary for scholars to be discriminating; 
otherwise a Panglossian position could evolve which merely states that the 
commander of the sea may dictate, merely by virtue of his power, what the 
law allows. Furthermore, the phrase "commander of the sea" is ambiguous. 
In World War I Great Britain held undisputed command of the surface of 
the sea. Yet this command did not command Germany's indiscriminate 
submarine warfare. After the United States entered the war new 
developments, as well as a far greater concentration of naval forces, narrowly 
defeated that almost overwhelming threat. Thus, the issue of legality should 
be tested by more discriminating criteria than upholding the strategies that 
combatants may view as necessary for their belligerent successes. 

Aspects from the considerations already stressed reveal that due regard 
must always be had for the principles o( humanity, proportionality, 
reciprocity, and utility. Humanitarian law imposes its standards, and they may 
be most effective when they can be shown to combine with the principle 
of military economy to moderate the ferocity of fighting's side effects and 
limit the violence of war's impact upon those drawn into its vortex. 

(2) Exclusion Zones as Facultative Instruments 

The point has already been made that Admiral Doenitz was not found guilty 
of the charges which arose from his orders to the German U-boat arm to 



Goldie 185 

engage in unrestricted submarine warfare contrary to the London Navy 
Treaty of 1930 and the 1936 Naval Protocol. This decision was ambiguously 
reached, as to principle, after the Tribunal had received evidence of British 
and United States methods of waging unrestricted submarine warfare, 
respectively, in the Skagerrak and the Pacific Ocean. 122 A distinction should 
be drawn, however, between the British maritime exclusion zone (namely 
of the Skaggerak) and that proclaimed by the United States. This latter zone 
consisted of the whole Pacific Ocean. The question thus becomes one of 
reviewing Maritime Exclusion Zones in terms of both the strategies they 
facilitate and of the values they promote. 

(a) The Exclusion Zone of the Skaggerak 

The Skaggerak is an arm of the North Sea on its eastern side and lies 
between Denmark and Norway. It is some 150 nautical miles in length and 
85 miles in width. 123 By contrast with this relatively restricted area, the Pacific 
Ocean covers approximately one-third of the Earth's surface. While both 
declarations may be found to be legally supportable, a basic distinction should 
be made between the grounds of their respective justifications. The argument 
vindicating the British proclamation of the Skaggerak as a maritime exclusion 
zone under emerging customary international law may be accepted, since the 
strategy for enforcing the exclusion of the adversary from the zone was an 
apparently successful one. It was a persisting logistical strategy enforced by 
both aircraft and submarines providing an adequate ratio of force to space. 
This proposition can be analyzed out into the following elements. 

(i) The zone was reasonable in area, and despite German surface naval 
power, the logistical strategy was persistently maintained and was made 
effective through submarine and aerial warfare; 

(ii) The object, while not primarily one of self-defense, was for the related 
purposes of: 

(a) Hampering the German utilization of Norwegian territory as a 
base for attacking the British Isles and North Atlantic convoys (including, 
of course, those going to Murmansk with aid for Russia); 

(b) encumbering Germany's reinforcements and supplies destined for 
its oppressive occupation of Norway — a victim of Nazi aggression; 

(c) the target shipping had military objectives and purposes and could 
not be viewed as carrying supplies which had the object of benefitting the 
civilian population of Norway; and 

(d) the ratio of the area to the force deployed was proportional to 
the military objective in hand. 

(b) The Pacific Exclusion Zone 

By contrast with the Skaggerak, the Pacific Ocean, the world's largest, 
has an area of 69,000,000 square miles and stretches from the Arctic Circle 
to Antarctica. 124 An announcement of indiscriminate sinking by submarines 
in such a vast area may not, it is suggested, reasonably be regarded as the 



186 Law of Naval Operations 

enforcement of a maritime exclusion zone, except by a naval service many 
times larger than the enormous force that the United States Navy deployed 
there. It is believed, furthermore, that the adjunct of a continuing presence 
of air power would have been a necessary adjunct for ensuring an effective 
persisting logistical strategy. For one thing, in so vast an area a submarine 
fleet of almost any size, on its own, cannot satisfy the requirement of 
"effectiveness. " The sinking of ships thus becomes contingent on the presence, 
coincidentally, of a target ship and targeting submarine in proximity to one 
another. 

Alternatively, as the case of the United States submarine service's 
operations in the Pacific illustrated, these coincidences tended to concentrate, 
before the liberation of the Philippines, in Philippine and Japanese home 
waters. Accordingly, although the United States Navy identified the whole 
Pacific as the exclusion zone, in fact the areas of actual attack tended to be 
where concentrations of Japanese shipping were to be found and where the 
submarines were ordered. Hence, in the zones of actual combat there was 
an adequate ratio of force to space and time. But the space so treated was 
far smaller than the Pacific Ocean. 

Of course, strategic and intelligence issues created an advantage in leaving 
the defined zone as the larger area, since the element of surprise, which 
provides the submarine with its single most important asset, could be lost 
if, as the war progressed, different, more limited, and more proportionate 
exclusion zones were progressively announced as the Allied Forces 
approached the Japanese home islands. In effect, in the smaller sea areas where 
submarine tactics were effective, persisting logistical tactics maintained the 
necessary effective pressure on Japanese shipping; but the raiding strategy 
on which this mode of warfare was founded, by reason of the extent of the 
maritime prohibited zone, did not provide effectiveness. 

On the other hand, while strategic convenience and utility may call for 
the announcement of the larger area, the legal rule of reasonableness does 
not reinforce the strategic consideration, since it is not reasonable to expect 
an effective enforcement, at all points of the Pacific Ocean, of the prohibition 
to shipping indicated in the proclamation or enunciation of such a zone. 
Rather, the U.S. submarines, like the German wolf-packs in the North 
Atlantic, tended to resemble more the "corsair" type of traditional maritime 
warfare (with the difference, of course, that the submarines were regular 
naval units, not privateers) rather than the enforcement of a specific maritime 
exclusion zone. On the other hand, while such an announcement as that of 
Admiral Nimitz of the vast maritime exclusion zone, which in itself was 
tantamount to a hunting license in the conduct of a raiding strategy, may 
not have found justification under any emerging customary norm — being 
more an analogy to a policy of worldwide indiscriminate submarine warfare 
than to the creation of a lawful maritime exclusion zone. 



Goldie 187 

The United States Navy's submarine strategy may, alternatively, be 
justified as a reprisal against the Japanese methods of waging war, from the 
surprise attack on Pearl Harbor on December 7, 1941, to that country's 
inhumane treatment of prisoners of war and of civilian internees caught under 
their occupation and, hence, not participating, pro tanto, in the emergence of 
a customary norm of international law. In addition, it should be noted, the 
Japanese, on their part, waged an inhumane and indiscriminate, even if 
relatively ineffective and militarily inept, submarine warfare on their own 
part. This mode of warfare on the part of Japan clearly marked, despite its 
relative ineffectiveness, the reprisals the United States Navy enforced by the 
submarine arm. Thus, the surprise advantage accorded by the vastness of the 
Pacific Ocean, which might be seen as negating the reasonableness of the 
United States declaration under an emerging rule of customary international 
law, may not be abrogated. It should instead properly be justified under the 
law of belligerent reprisals rather than as participating in the emergence of 
a customary norm of international law permitting states, who comply with 
the necessary criteria, to establish maritime exclusion zones. 

Again, the "exclusion zones" created by Iran and Iraq do not seem to have 
been relevant to those countries' attacks on each other's shipping or to attacks 
that they made on the shipping of third (neutral) parties. With regard to the 
Falklands Conflict, in light of the above argument it is believed that the 
exclusion zones established by both sides, including the "British Bubble," but 
excluding the last of the Argentine proclamations, namely of the "South 
Atlantic War Zone" on May 11, 1982, were valid, and testify to the emergence 
of the relevant customary norm. That last Argentine proclamation was both 
vague as to area, and random, and hence militarily ineffective, as to 
enforcement. Accordingly, it should be found to have failed in the test of 
reasonableness. Indeed, as the United States Court of Appeals for the Second 
Circuit pointed out in the Amerada Hess case 125 the sinking of the Hercules was 
an international wrong. In reaching this conclusion, the court ignored 
(correctly, it is suggested) any relevance that the Argentinian Declaration 
of the "South Atlantic War Zone" might have had as a justification, had it 
not resulted in a randomly chosen raiding action. 

While, perhaps, the view already quoted from Professor Lauterpacht, and 
reiterated by Professor Julius Stone 126 may be overbroadly permissive, the 
opposing thesis recently expressed by Ross Leckow that "the implementation 
of war zones can be justified only in very restricted circumstances . . ." 127 
and his restricted condonation of resort to this device in terms of 
"reasonableness" 128 is not supported without a necessary spelling out of the 
meaning of the word in terms of strategies and goals, and in terms of means 
and methods relative to those strategies and goals. 



188 Law of Naval Operations 

V. Summary Conclusion 

At the present time, more than in Clausewitz's day, war has taken on a 
chameleon-like character. It now depends on politics both as to means and 
to ends. Thus law necessarily must adjust to the variable social and ideological 
substrata upon which its pursuit depends in all their protean forms. 
Accordingly, while the following quotation from the late Professor Julius 
Stone's magisterial work on the regulation and control of conflict situations 
is seen as uttering an important insight, it should be treated as an invitation 
to rethink the emerging rules, and to treat states' conduct in the area, and 
the consecration of allegedly emerging rules with discriminatory reservation, 
rather than the undiscriminating proposal of a new norm of customary 
international law covering most, if not all, of the relevant situations. Stone 
eloquently and perhaps even cogently wrote: 

It is idle to seek to reduce this matter to a cri de coeur of humanity. War law, even 
at its most merciful, is no expression of sheer humanity, save as adjusted to the exigencies 
of military success, a truth as bitter (but no less true) about attacks on merchant ships, 
as about target area saturation bombing. And it is also quite idle for Powers whose 
naval supremacy in surface craft enables them to pursue the aim of annihilating the 
enemy's seaborne commerce without "sink at sight" warfare, to expect that States which 
cannot aspire to such supremacy will refrain from seeking to annihilate that commerce 
by such naval means available to them as submarines, aircraft and mines. To refuse to 
face this will save neither life nor ship in any future war; and it will also forestall the 
growth of real rules for the mitigation and suffering under modern conditions. 129 

Stone's observation about practicalities and expectations is without doubt 
correct. The experience of two World Wars tells that legal change in the 
direction towards which the late Professor Stone points is becoming 
crystallized. On the other hand, while the insight and direction of the 
quotation reflects contemporary needs, it tells us little about testing the 
distinction between acceptable and unacceptable formulations for declaring 
maritime exclusion zones and resorting to submarine warfare to enforce them. 

The preceding pages have sought to foreshadow and examine 
discriminating tests for determining whether a maritime prohibited zone is 
entitled to deference and compliance, as being lawful, or whether it should 
be resisted by third parties as unlawful. It is now useful to analyze and subsume 
models of the types of maritime prohibited zones that have been met in history, 
including very recent history, under the heads that have been developed in 
terms of goals and strategies. But before that analysis is presented, a general 
point should be made: while circumstances may dictate whether or not 
publicity, and the giving of a timely notice, may, or may not, be to the 
strategic advantage of a belligerent (as for example it was clearly so in the 
case of the British Falkland Islands proclamation that took effect on April 
12, 1982 130 ), publicity is clearly a necessary precondition for the legal validity 



Goldie 189 

of every exclusion zone. In this context, Fenrick has correctly argued that 
the declaring state should: 

[Pjublicly declare the existence, location and duration of the zone, what is excluded 
from the zone, and the sanctions likely to be imposed on ships or aircraft entering the 
zone without permission, and also to provide enough lead time before the zone comes 
into effect to allow ships to clear the area. 131 

This paper will now summarize and review the arguments that have been 
developed in terms of ends and means, goals, strategies and methods, and 
tactics in resorting to maritime prohibited zones as instruments of waging 
war. 

A. Defensive Goals and Persisting Logistical Strategies 

First, it is suggested that purely defensive zones of reasonably limited 
extent, regarding which a timely and public notice to all affected ships and 
aircraft has been given, for example those established by Japan in the Russo- 
Japanese War, 1904-05 and by the United States in 1917, 132 have always been 
acceptable to other maritime powers, even though they did trespass onto the 
high seas as then delimited. Despite their far greater extent than those of 
1904 and 1917, the British and Argentinian exclusion zones (except for that 
latter country's last proclamation of such a zone which sought to constitute 
the South Atlantic Ocean as a maritime prohibited zone) in the Falkland 
Islands Conflict of 1982, were lawful on the same grounds. 133 These may, 
accordingly, be justified on the basis of the publicity of their announcement, 
the specificity of their delineation, the fact that adequate time was given for 
affected shipping to quit the area, and the restraint (and proportionality) 
exercised in the enforcement. 134 Furthermore, after the arrival of the 
expeditionary force, the British zones reflected a defensive strategy 
(although, necessarily, they were part of their proponent's attacking tactics), 
were logistically persistent and involved an adequate ratio of force to space 
and time. Hence they also satisfied the traditional, but still prevailing, 
customary international law rule which requires effectiveness, 135 
proportionality, reasonableness and, so far as the United Kingdom was 
concerned, appropriateness for advancing that country's lawful purpose, 
namely compliance of both sides with United Nations Security Council 
Resolution 502. 136 

At this point it may be noted in passing that "Operation Market Time," 
which was enforced by the United States Navy during the Vietnamese War 
was legally valid since it was a law-enforcement operation limited to a 
distance of twelve miles from the low water mark of South Vietnam (it did 
not extend north beyond the DMZ) and so within the domestic competence 
of South Vietnam, which legislated to empower the activity. Since that 
operation was conducted entirely within the territorial sea and contiguous 



190 Law of Naval Operations 

zone of South Vietnam, it does not come within the perspective of the present 
paper. 137 Similarly, the blockade of Haiphong and other North Vietnamese 
ports was justified in the Naval Commander's Handbook as being "in conformity 
with traditional criteria . . .," 138 and should not be regarded as falling within 
the emerging concept of maritime prohibited zones, but rather of the 
traditional notions of blockade. 

B. Defensive Goals Expressed in Raiding Logistical Strategies and Tactics 

The establishment of unacceptable and hence invalid maritime defensive 
zones for the purpose of warning an enemy that shipping could be attacked 
without further warning, but which cannot be consistently sustained, was 
exemplified by all three of the Argentinian proclamations. Apart from 
Security Council Resolution 502, 139 which declared Argentine presence in the 
Falkland Islands (Malvinas) to be unlawful, the first two Argentine 
proclamations may be viewed as lawful in terms of jus in hello in 
contradistinction to any reference to arguments in terms of jus ad helium. But 
that country's third legally indeterminate and ineffective proclamation of 
May 11, 1982, failed to comply with any criteria of validity. 140 On the other 
hand, it appeared that none of the three could be sustained by a persisting 
logistical strategy, so that, on the basis of effectiveness in terms of an adequate 
ratio of force to space and time, they all become questionable as only being 
sustained by raiding tactics. These tactics, and the strategy from which they 
were derived, are no more than the exploitation of the forces' nuisance value. 
While causing loss of life and supplies, they were too sporadic to affect the 
adversary's will, or the outcome of the contest. The criticism, in earlier 
paragraphs, of the United States' establishment of the Pacific Ocean as a 
maritime zone from which Japanese shipping was purported to be excluded 
during World War II, reflects the non-validating combination of the criteria 
of defensive goals expressed through logistical raiding strategies and tactics. 

C. Aggressive Goals and Persisting Strategies 

In the Indo-Pakistan War the Indian Navy established an exclusion or 
blockade zone outside the Pakistani port of Karachi. No specific zone was 
proclaimed, but any shipping, regardless of flag, was targetted on the high 
seas. India had a sufficient ratio of power to space to maintain its attacks 
on neutral shipping both within and without the zone of blockade. That is, 
while the purpose was aggressive, Indian power was sufficient to maintain 
a persisting and effective control of the zone affected as well as sea areas 
beyond it. The reasons that this persisting exercise of power did not become 
the target of angry repercussions in the rest of the world have been ascribed 
to the following factors: 

(i) The conflict itself was "short-lived — about a week;" 141 



Goldie 191 

(ii) Because of the shortness of the time of the blockade, Professor 
Daniel O'Connell believed that there was little time for reaction. He observed 
that, *[h]ad the naval blockade been prolonged and strictly enforced, 
however, the situation might have become very different, especially if the 
important tanker traffic through the Straits of Hormuz had been 
incommoded; ' ' 142 

(iii) Most of the shipowners who did suffer loss recovered through their 
insurance brokers under war risk clauses. In O'Connell 's phrase, they 
"shrugged their shoulders" at the destruction that the Indian Navy inflicted. 
O'Connell did, however, also mention the case of the sinking of a Spanish 
ship. This ship's case "was taken up by the Spanish Government, which 
demanded compensation from the Indian Government." 143 He added: "This 
was refused." 144 

Although, from the lawyers' point of view, the issues raised by this conflict 
may have been left in an indeterminate and unresolved condition, their 
incompleteness provides an important invitation to resolve the facts left 
dangling in this way under international law. The Indian experience shows 
how the maintenance of an aggressive, persisting logistical strategy 
necessarily must be classified as illegal, despite its effectiveness, since the 
aggressive use of force against neutral shipping not concerned in the war is 
contrary to the basic principles of international law and the principles and 
purpose of the United Nations. 

D. Offensive (Aggressive) Goals Supported by a Raiding Strategy 

Although in both World Wars Germany proclaimed prohibited zones in 
which her submarines would sink merchant shipping, including neutral 
shipping on sight and without warning, the system was not one of maintaining 
a prohibited zone as such, but of creating hunting licenses for submarines. 
The zones were not predicated on the defensive requirements of the German 
homeland. Thus, they may be contrasted with the actions of Japan in 1904 145 
and the United States in 1917 146 . In addition, they were carried out in 
fulfillment of a raiding strategy which depended on raiding tactics. 147 At no 
time was there any attempt to hold a sea area by means even of persisting 
tactics, let alone of an effective and persisting strategy. The idea of 
establishing and validating a prohibited zone simply by means of a raiding 
strategy implemented by the surprise excursions of submarines on sink-on- 
sight hunting missions constitutes a complete contradiction of the notion of 
maintaining, effectively, a prohibited maritime zone. 

While the sea areas proclaimed as prohibited to their adversaries (such as 
those by Germany in both World Wars and the United States in World War 
II) may not qualify as lawful maritime exclusion zones they may, possibly, 
be justified under some alternative rubric. For example, the United States 
zone might well have been upheld, at the time of its proclamation, as a reprisal 



192 Law of Naval Operations 

for previous illegal acts or policies by the Japanese naval and military forces. 
Such zones, however by their very nature, cannot be classified as complying 
with the requirements of self-defense, proportionality, reasonableness, and 
effectiveness. Nor can they be seen as providing validating persistent logistical 
strategies through effective and comprehensive enforcement throughout the 
zones proclaimed. Hence, they may not be viewed as legitimated by any 
emerging rule of customary international law dependent on effectiveness and 
reasonableness. 

An argument pointing, possibly, in favor of the validity of the German 
North Atlantic maritime exclusion zone and the United States zone of the 
Pacific may be founded on other, narrower, grounds, namely that the ships 
attacked were part of the enemy's war effort and were naval auxiliaries, not 
true merchant ships. This would leave as impermissible, however, attacks on 
neutral shipping. It would, further, lead to characterizing aggravated and 
unnecessary attacks on survivors in lifeboats, on lifeboats, or clinging to 
wreckage or other flotation gear as war crimes for which there would be 
neither excuse nor defense. 148 But this issue relates only to the limits imposed 
by humanity and necessity on the specific acts which a state or a commander 
undertakes when implementing a raiding strategy and faces the consequences 
of his immediate resort to raiding tactics. He runs a high risk of being 
stigmatized for engaging in the impermissible conduct that his actions may 
well entail. Such inhumane conduct as that attributed, for example, to Karl- 
Heinz Moehle, 149 and testified to in The Peleus Case 150 remain impermissible 
under the Nuremburg Principles and decisions. 

E. Persisting Moveable Defense Maritime Zones Effectuated by Persisting Tactics 

Reference has already been made to the defense "Bubble" established by 
the United Kingdom on April 23, 1982. 151 O'Connell has pointed out that prior 
to that war operational zones consisting of a moveable circle centering on 
a naval or amphibious task force, "have the benefit of the precedent of the 
Spanish Civil War". 152 This reference relates to the very interesting and 
largely forgotten Nyon Arrangements. 153 Such a "moveable war zone" will 
assuredly have a wide application in the future. When shown to be consistent 
with such criteria as reasonableness, self-defense, and proportionality 
between means and ends, these zones are within what may be legally 
permissible. Professor O'Connell wrote in support of them "that they would 
not have the characteristics of the war zones condemned at Nuremberg." 
He warned, however, that "[t]his is not to eliminate legal doubts about the 
matter, but rather to indicate that the law appears to be sufficiently malleable 
to give naval staffs a certain freedom of manoeuvre in their planning." 154 

F. Conclusion 

This chapter has sought to relate the question of the possibly emerging 



Goldie 193 

legality, under international law, of certain types of maritime prohibited 
zones as instruments of war strategy. They have been seen, largely, but not 
entirely, as involved with logistical strategies, although these zones may also 
of course, be used to redirect shipping at the belligerent's strategic and tactical 
battle convenience, provide an early warning defensive system, and limit the 
area of belligerent activities in any specific contest. It is, of course, true that 
the goals of the interdiction of supplies to an enemy, the redirection of 
shipping, the establishment of defensive zones and the limitation of the area 
of a contest, are all lawful goals. The means and methods, including the 
strategies and tactics that provide the modalities of achieving these goals, may 
not necessarily or inevitably be justifiable. Lawfulness will, of course, depend 
on their specific characteristics and objectives. Also, some goals for which 
maritime exclusion zones may be deployed, for example, waging an 
aggressive war or for facilitating an act of aggressive and surprise attack on 
an unsuspecting victim, or indiscriminately operating against neutral shipping 
and failing to observe the principle of distinction, are clearly unlawful and 
are to be avoided by states proposing to establish such zones. 

With regard to lawfulness of the means and methods employed in furthering 
lawful ends, the attempt has been made to review the various strategies and 
tactics as they tend to be employed to facilitate the belligerent's goals. While 
some of those may be tainted with the unlawfulness of the ends for which 
they are used, others are, and should remain, unlawful per se on the grounds 
of their being tainted by their inherent wrongfulness. Their means alone are 
fatal to their legality. Examples of such tainting elements include their 
unreasonableness, their want of specificity of definition in space and time 
(including their failure to allow adequate time for neutral shipping to quit 
the proclaimed area), their ineffectiveness, and their lack of proportionality 
to the ends sought. Others may be invalidated by acts of specific inhumanity 
involved in their enforcement. They are also unlawful if they are simply used 
as means of giving further effectiveness to raiding strategies. 

This paper's purpose in coupling strategies and tactics involved with their 
goals was to examine the possibility of consecrating some maritime prohibited 
zones, especially those that scrupulously observe the principle of distinction 
and respect the rights of neutral shipping and commercial activities, as 
becoming increasingly acceptable and hence lawful by distinguishing them 
from those that remain unlawful. This was done in terms of viewing the 
strategies and the tactics to which the belligerent power resorted for the 
purpose of implementing the zone as part of its overall maritime war strategy 
and as part of his obligation to respect the rights, privileges and immunities 
of third parties. That is, the relevant strategies and tactics employed were 
examined in terms of determining the lawfulness not only of ends, but also 
of means and methods. This study has reviewed the interfusion of means and 
ends, and the manner in which they inseparably color, condition, and 



194 Law of Naval Operations 

characterize one another. Finally, a basic theme of this paper has been the 
review of those criteria for appraising the emerging legality of at least those 
maritime prohibited zones which show effectiveness, persistence, the 
principle of distinction, respect for neutral rights, humanity, and 
proportionality. 

Notes 

* Professor of Law (Emeritus), Director, International Legal Studies Program, Syracuse University 
College of Law. Stockton Chair, Naval War College, 1970-71. This chapter has been written in connection 
with the ongoing project on "The International Humanitarian Law Applicable to Armed Conflict at Sea" 
and in part satisfaction of grants for the above project from the Ford Foundation and the United States 
Institute for Peace. The supplemental support of the Center for Interdisciplinary Studies of the Syracuse 
University College of Law is also gratefully acknowledged. The opinions, findings and conclusions 
expressed in this publication are those of the author and do not necessarily reflect the views of the United 
States Institute for Peace or those of the Ford Foundation. 

1. Sir Hersch Lauterpacht has defined maritime exclusion zones (or "war zones") as follows: 

[A] war zone in maritime operations may be said to comprise an area of water which a belligerent 
attempts to control, and within which it denies to foreign shipping generally the same measure 
of protection which the latter might elsewhere claim. 

L. Oppenheim, International Law: A Treatise, H. Lauterpacht 7th ed. (London: Longmans Green & Co., 1952), 
v. 2, p. 681, note 1 [hereinafter cited as Lauterpacht 's Oppenheim]. See also, to similar effect, Julius Stone, 
Legal Controls of International Conflict (New York: Rinehart & Co., Inc., 1954), p. 572 [hereinafter cited 
as Stone, Legal Controls]. Under certain circumstances, a maritime exclusion zone reflects a different method 
of waging war from that of conducting a traditional blockade. Such a zone may have merely the defensive 
object of keeping shipping, which might otherwise constitute a threat, away from an area, for example, 
of military operations. On the other hand, such zones may also be used for the purpose of denying an 
adversary access to resources, economic advantages of many kinds, and war materiel. In both cases, the 
object of the exclusion is logistical but may reflect a convergence of three distinct concepts: self-defense, 
blockade, and combat "killing grounds" (this last being a tactical rather than a legal concept). For a 
discussion of the various strategies involved, see, infra note 116 and accompanying text 

2. William Edward Hall, A Treatise on International Law , Pearce Higgins 8th ed. (London: Oxford Univ. 
Press, 1924) [hereinafter cited as Hall]. See also C.J.B. Hurst and F.E. Bray, eds., Russian and Japanese Prize 
Cases (Buffalo, N.Y.: William S. Hein Co., 1972), v. 2, pp. 343-53 [The "Quang Nam"] [hereinafter cited 
as Hurst and Bray]; T.J. Lawrence, War and Neutrality in the Far East, 2d ed. (London: Macmillan and Co., 
1904), pp. 83-91. See also, infra § II A. 

3. See infra § II E. 

4. U.S. Navy Department, The Commander's Handbook on the Law of Naval Operations, NWP 9 
(Washington: U.S. Govt. Print. Off, 1987) [hereinafter Commander's Handbook or NWP 9]. 

5. Id., par. 7.7.5. 

6. Id. 

7. Id. 

8. Id. 

9. See infra notes 30-34, and the reference therein to the Declaration of Paris of 1856 and the Declaration 
of London of 1909. The text accompanying those notes discusses the treaty requirement of "effectiveness" 
for the purpose of establishing the validity of a blockade. For the practice of the United States with regard 
to the effectiveness requirement, and as reflected in the Civil War (or "War of Rebellion") 1861-65, 
See Dahlgren, Maritime International Law, Cowley ed., 1877, passim, and especially 25-61. The late Daniel 
P. O'Connell teaches us that the traditional concept (effectiveness) of the blockade required that it be 
"visible" and continued with the observation that it "required presence of the blockading force within 
visual range of the coast, although temporary withdrawal for reasons of stress of weather was not regarded 
as raising of the blockade." D.P. O'Connell, The International Law of the Sea, 2d ed. (Oxford: Clarendon 
Press, 1984), v. 2, p. 1150 [hereinafter cited as O'Connell, Law of the Sea]. Indeed some writers on the 
traditional concept of blockade, drawing an analogy with besieging a city, argued that the blockading 
ships should be at anchor. See, e.g., Stone, Legal Controls, supra note 1, p. 508. 



Goldie 195 

It [i.e., the traditional concept of blockade] presupposed that anchored ships could, with safety 
to themselves, maintain close physical surveillance of the blockaded ports. It also presupposed that 
a blockading vessel's sight and reach was limited by the human eye and the telescope and flag 
signal. 

See also Lauterpacht's Oppenheim, supra note 1, v. 2, p. 779, where the author wrote: 

According to one opinion, the definition of an effective blockade pronounced by the First Armed 
Neutrality of 1780 is valid, and blockade is effective only when the approach to the coast is barred 
by a chain of men-of-war, anchored on the spot, and so near to one another that the line cannot 
be passed without obvious danger to the passing vessel. This corresponds to the practice followed 
before the First World War by France, (footnotes omitted) 

It should be noted that this is not the only view. See ibid., pp. 779-80, where we find a further statement 
regarding the second thesis concerning the requirement that the blockade must be effective: "According 
to this opinion, there need be no chain of anchored men-of-war to expose to a cross fire any vessels 
attempting to break the blockade; a real danger of capture suffices. ..." 

10. "Convention Relative to the Laying of Automatic Submarine Contact Mines," October 18, 1907, 
T.S. 54, Statutes at Large, v. 36, p. 2332, reprinted in American Journal of International Law (Supp.), v. 2, 
p. 138 (1908). See especially, articles 2 and 3. It should be noted that in Lauterpacht's Oppenheim, supra note 
1, v. 2, p. 781, we find article 2 to be stigmatized as "very unsatisfactory." 

11. See quotation from O'Connell, supra note 9. 

12. For a brief description of "Market Time" and "Sea Dragon," see infra text accompanying notes 
137 and 138. 

13. See Archer Jones, The Art of War in the Western World (1987), pp. 57-59 [hereinafter cited as Archer 
Jones], especially at p. 58, where the author illustrated the term (from the Persian response to Alexander 
the Great's campaign in Anatolia 334-333 B.C.) as follows: 

Instead of assaulting the enemy's (i.e., Alexander's) army to defeat a Greek advance, Mardonius, 
the shrewd Persian Commander, had used his superb cavalry to raid the Greek army's supply bases 
to compel a retreat from its strong position at Plataea. 

As the rest of this chapter will testify, Professor Archer Jones's analysis and classification of the means 
and methods of waging war have been seminal to this writer's perception of the social and planning realities 
underlying the laws of war. It should be added that, following Professor Jones, this writer has also used 
the terms "strategy" and "tactics" in the traditional sense. See id., at p. 1, where the author stated: 

An analytical approach to military operations permits one to divide the topic according to the 
three major components of the art of war: tactics, logistics, and strategy. Tactics should deal with 
combat and with the weapons, methods, and maneuvers on the battlefield. Logistics concerns 
providing the men themselves and the support of military operations, including the movement of 
armies and navies and the supply of weapons, food, clothing, and shelter for the soldiers and sailors. 
Strategy integrates tactics and logistics to determine the military objectives and the means of 
carrying them out. Naval warfare lends itself best to a separate treatment. 

14. Professor Archer Jones, id., at p. 55, also defines his seminal distinction between "raiding" and 
"persisting" strategies. He writes: 

Whereas the former [i.e., the "raiding strategy"] used a temporary presence in hostile territory, 
a persisting offensive strategy envisioned a longer, even permanent, occupation of the territory 
of the adversary or his allies. A persisting defensive strategy sought to prevent such an occupation. 
On both the defensive, and the offensive, the persisting strategy envisioned the possibility of conflict 
between the principal hostile forces; raiders, on the other hand, often could attain their objective 
without significant military conflict and frequently sought to do so. 

It also should be pointed out that Professor Archer Jones distinguished offensive and defensive tactics, 
so that a force, following an offensive or raiding strategy might occupy a strong position and then follow 
defensive tactics. Of course, he also envisioned the opposite — a defensive strategy enforced by offensive 
tactics. But, in this chapter the use of defensive tactics for the purpose of putting raiders in a defensive 
posture will be treated as engaging in offensive conduct. 

15. William Shakespeare, The Tragedy of King Richard II, act II, scene 1, line 48. 

16. Hall, supra note 2, p. 642. 



196 Law of Naval Operations 

17. Hurst & Bray, supra note 2, v. 2, pp. 343-53. 

18. This concept was explained in a letter of April 23, 1982, from the Permanent Representative of 
the United Kingdom to the President of the United Nations Security Council (S/14997), which stated, 
inter alia, that: 

In this connection, Her Majesty's Government now wishes to make clear that any approach on 
the part of Argentine warships, including submarines, naval auxiliaries, or military aircraft which 
could amount to a threat to interfere with the mission of the British forces in the South Atlantic, 
will encounter the appropriate response. All Argentine aircraft including civil aircraft engaged 
in surveillnace of these British forces will be regarded as hostile and are liable to be dealt with 
accordingly. 

Quoted in Geoffrey Marston, ed., "United Kingdom Materials on International Law 1982," British Yearbook 
of International Law , v. 53, p. 337 at pp. 540-41 (1981) [hereinafter cited as Marston]. 

19. See Lawrence, supra note 2, pp. 83-93. 

20. Id., pp. 86-87. 

21. These United States orders were reproduced in American Journal of International Law (Supp.), v. 12, 
pp. 13-22 (1918). See Hall, supra note 2, p. 642. 

22. Hall, supra note 2, p. 642. See also Judgments of Lord Sumner in The Stigstad, 3 B & C. P.C. 347, 
353, and Ertel Bieber and Co. v. Rio Tinto Co., Ltd., [1918] A.C. 260, 287. Hall, supra, note 2, p. 643, at note 
2, also refers to the early U.S. Naval War College Blue Book as approving of the Japanese orders. See 
infra note 23 and accompanying text. 

23. Referring with approval to the Quang Nam case (which, of course, was prior to the Japanese orders), 
the influential Naval War College Blue Book offered the following solution to a problem based on the 
Japanese orders: 

The master appeals to the commander of a cruiser of the United States to escort him through 
this area [i.e., a maritime exclusion zone similar to those proclaimed by Japan in 1904]. The voyage 
would not bring the vessels within 5 miles of the coast of State X [i.e., the belligerent proclaiming 
the zone in question]. 

What should the commander do? 

SOLUTION 

The commander should decline to escort the merchant vessel though the strategic area. 

He should advise the master of the merchant vessel to keep clear of the strategic area. 

Naval War College, International Law Situations with Solutions and Notes (Washington: U.S. Govt. Print. Off., 
1912), pp. 114, 129. 

24. Archer Jones, supra note 13, points out, at p. 488, that: 

In former wars British blockades had hurt France's economy somewhat but had never had the 
effect that the [1914-18] blockade had on Germany, of reducing food consumption and handicapping 
industry because it had diminished or shut off the supply of such critical supplies as oil or copper. 
Never, too, had France's raiding strategy of attacking English ships come as near seriously menacing 
the British economy and ability to carry on the struggle as had the German submarine campaign 
against the allies. The navy's logistical strategy had acquired a new and perhaps decisive power 
in the industrial age. 

25. Lauterpacht's Oppenheim, supra note 1, v. 2, pp. 561-62, characterized reprisals in the following terms: 

Whereas reprisals in time of peace are injurious acts committed for the purpose of compelling 
a State to consent to a satisfactory settlement of a difference created by an international 
delinquency, reprisals in time of war occur when one belligerent retaliates upon another, by means 
of otherwise illegitimate acts of warfare, in order to compel him . . . and members of his forces 
to abandon illegitimate acts of warfare. . . . They have often been used as a convenient cloak for 
violations of International Law. 

26. For the British and Allied position in this regard, see Lauterpacht's Oppenheim, supra note 1, v. 2, 
pp. 791-97, and Stone, Legal Controls, supra note 1, pp. 504-07, 508-10. More generally, for the British and 



Goldie 197 

German positions on their blockades as being justified by belligerent reprisals, see Robert W. Tucker, 
The Law of War and Neutrality at Sea (Naval War College International Law Studies, v. XLX) (Washington: 
U.S. Govt. Print. Off., 1957), p. 301 [hereinafter cited as Tucker]. See also, Clive Parry et al., eds., 
Encyclopaedic Dictionary of International Law (New York: Oceana Publications, Inc., 1986), p. 337; Basdevant, 
Dictionnaire de la Terminologie du Droit International, (1960), pp. 529-30. 

27. Howarth, Sovereignty of the Seas (1974), pp. 283-84. 

28. Myres S. McDougal and Florentino P. Feliciano, Law and Minimum Public Order: The Legal Regulation 
of International Coercion (New Haven: Yale Univ. Press, 1961), pp. 488-489 [hereinafter cited as McDougal 
& Feliciano]. 

29. Id. 

30. See "Declaration Respecting Maritime Law," April 16, 1856, Martens, Nouveau Recueil General, v. 
15, p. 791, art. 4 [hereinafter cited as Declaration of Paris of 1856]. Art. 4 of the Declaration provides: 

Blockades, in order to be binding, must be effective, that is to say, maintained by a force sufficient 
really to prevent access to the coast of the enemy. 

31. Naval Conference of London, "Declaration Concerning the Law of Naval War," Feb. 26, 1909, 
Proceedings of the International Naval Conference, held in London, December 1908-February 1909 (London: H.M. 
Stationery Office, 1909), Cd. 4555, pp. 381-93; reprinted in Dietrich Schindler & Jiri Toman, The Law 
of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents, 3d ed. (Dordrecht, The 
Netherlands: Martinus Nijhoff Publishers, 1988), p. 845 [hereinafter cited as Declaration of London of 
1909]. Note that the qualifier "really" in the Declaration of Paris of 1856 was repeated in article 2 of 
the Declaration of London of 1909. 

32. See Guichard, The Naval Blockade 1914-1918 (Turbet transl. 1930), pp. 16-18 [hereinafter cited as 
Guichard]. 

33. See infra note 40 and the accompanying text. 

34. See also supra notes 25 and 26 and the accompanying texts. 

35. See Archer Jones, supra note 12, at p. 499. On realizing the utility of the submarine as a raider 
carrying out a devastating logistical strategy, Germany began building an impressive submarine fleet as 
fast as possible. She was not, however, able, by developing an adequate ratio of power to the vast spaces 
of the Atlantic Ocean, to develop a persisting strategy. Her submarines were only able to fulfill raiding 
strategy and so, despite German calculations, enough food, materiel, equipment, and American troops 
were able to cross the Atlantic to ensure her defeat. 

36. Id., Table 8.3, p. 468. 

37. "Convention Relative to the Laying of Automatic Submarine Contact Mines," supra note 10, arts. 
2-3. 

38. See supra note 30. 

39. Columbian-Peruvian Asylum Case, Judgment of November 20th, 1950, I. C. J. Reports 1950, p. 
266, at p. 276. 

40. Great Britain: Order-in-Council of August 20, 1914; France: Proclamation of August 23, 1914. 

41. See supra text accompanying note 32 for the outline of the facts showing, that it was in Germany's 
interest that the Declaration would govern the maritime commerce of both sides. 

42. Guichard, supra note 32, at pp. 40-41. 

43. Id., p. 42. 

44. Guichard, supra note 32, argues that the term "blockade of the Central Empires" was a misnomer, 
since the Entente Powers, who "had a very proper respect for the Declaration of Paris of 1856" which 
"prohibits the confiscation of enemy goods sailing under a neutral flag," merely seized and either 
sequestrated or returned to their owners such goods and did not confiscate them. Id., pp. 42-43. It may 
be noted, however, that Guichard also refers to "the blockade" and thereafter uses the word to describe 
the Entente's policy. Id., p. 62. 

45. See supra note 31 and texts accompanying notes 31-34; See also, Guichard, supra note 32, at pp. 13- 
19. 

46. Id., pp. 108-10. See also William S. Sims, Victory at Sea (1921), passim. 

47. See, supra note 31 and accompanying text. See also, supra text accompanying notes 32-34 and Guichard, 
supra note 32, at pp. 13-19. 

48. For a history of the negotiations of this affair, see Guichard, supra note 32, at pp. 196-202. Guichard 
there records the increasing cordiality of relations in the last months of World War I, including acceptance 
of the claims of the Allied and Associated Powers with regard to the long distance blockade. 

49. See Guichard, supra note 32, at p. 97. For a history of this disastrously conceived piece of 
Hohenzollern diplomatic adventurism, see Barbara W. Tuchman, The Zimmerman Telegram (1958), passim, 
and especially chapters 11 and 12, entitled "The Telegram in Washington," and "Obliged to Believe It." 



198 Law of Naval Operations 

Tuchman believed that this latter activity on the part of Imperial Germany had a far stronger influence 
on the United States' entry into World War I than Germany's policy of unrestricted submarine warfare. 
50. Guichard, supra note 32, at p. 96. 

50. Id., pp. 97-98. 

51. March 3, 1918. Ratifications exchanged March 29, 1918. Denounced by the Russian Government, 
November 13, 1918. Abrogated by Articles 116 and 292 of the Treaty of Versailles, June 28, 1919, Martens, 
Nouveau Recueil, v. 9:1, 3 ieme Serie 323, British and Foreign State Papers, v. 112, p. 1 (1919). 

52. See Guichard, supra note 32, at pp. 97-98. 

53. "Order in Council Framing Reprisals for Restricting Further the Commerce of Germany," Stat. 
R. & O., 1939 No. 1709. Stone calls this " a very moderate measure." Stone, Legal Controls, supra note 
1, p. 504. Writers and commentators have also expressed surprise at the three-month delay. See, for 
example, id., p. 504, note 1, and the authors cited therein. Regulation of neutral trade with the enemy, 
however, became stricter under the Order-in-Council of June 11, 1940. "Order in Council Applying the 
Order in Council of November 27, 1939, to Italy," Stat. R & O, 1940 No. 979. 

54. For the Italian protest and the United Kingdom's reply, see Cmd 6191 (1940) at pp. 2-7. 

55. See "Order in Council Applying the Order in Council of November 27, 1939, to Italy," supra note 
53. 

56. The similar claims by the United Kingdom, and later the United Nations, of a right of reprisal 
because they associated themselves with Germany's methods of warfare at sea, were subsequently made 
against Finland, Hungary, and Rumania. See Stone, Legal Controls, supra note 1, p. 504. 

57. Id. 

58. United Nations, History of the United Nations War Crimes Commission (1948), p. 492. 

59. "Treaty for the Limitation and Reduction of Naval Armament," April 22, 1930, U.S. Statutes at 
Large, v. 46, p. 2858, reprinted in Schindler & Toman, supra note 31, p. 881. 

60. "Proces- Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of 
London of April 22, 1930," Nov. 6, 1936, American Journal of International Law (Supp.), v. 31, p. 137 (1937), 
reprinted in Schindler & Toman, supra note 31, p. 883. 

61. Trial of the Major War Criminals Before the International Military Tribunal (Nuremberg, Germany: 
International Military Tribunal, 1948), v. 22, pp. 556-61. 

62. The case of the British auxiliary cruiser Baralong in 1916 illustrates the public outrage of that country 
at Germany's indiscriminate submarine warfare. See, [1916] British Parliamentary Papers, Misc. No. 1 
[Cd. 8144], reprinted in American Journal of International Law (Supp.), v. 10, pp. 79-86 (1916). Catching the 
officers and crew of a German U-boat in the act of sinking a British merchant ship, the captain of the 
Baralong ordered their summary execution on the spot. On the German Government's demand that the 
British Government prosecute the latter 's commander and her ship's company for murder and punish them 
according to the law of war, the British Government, without admitting the facts, justified the executions 
as retaliation against the ruthlessness of Germany's U-boat policy of unrestricted sinking of merchant 
ships. On the other side of the coin, see the German condemnation of the British policy of arming 
merchantmen and instructing them, as a last resort, to ram U-boats, even if signalled to stop and submit 
to visitation. This escalation of outrage culminated in Germany's conviction and execution, in July 1916, 
of Captain Fryatt, the commander of the merchant ship Brussels for having attempted, in March 1915, 
to ram the German submarine U-33. See Lauterpacht's Oppenheim, supra note 1, v. 2, p. 468, where Germany's 
act was stigmatized as "nothing else than a judicial murder." See also James Brown Scott, "The Execution 
of Captain Fryatt," American Journal of International Law, v. 10, p. 865 (1916). In his article, Scott, a leading 
American international lawyer and Editor of the Journal at a time when the United States was still a neutral, 
stated categorically: 

Ramming is an effective method of defense against a submarine and the fact that a submarine is 
a frail thing and cannot stand this kind of warfare is its misfortune, not the merchantman's fault. . . . 

Id., p. 877. Scott concluded his Editorial Comment with the following statement: 

If the views above expressed are correct that there is nothing in the law nor in the practice 
of nations which prevents a belligerent merchant vessel from defending itself from attack and 
capture, the execution of Captain Fryatt appears to have been without warrant in international 
law and illegal, whatever it may have been according to the municipal ordinances of Germany. 

Id. See also "The Brussels: Captain Fryatt 's Case," Pitt Cobbett, Leading Cases in International Law, Walker 
5th ed. (1937), v. 2, p. 131 [hereinafter Pitt Cobbett]. The author commented: 



Goldie 199 

Germany seems to have been the first nation to question either the right of active self-defense 
or the legitimacy of defensively armed merchant ships. Practice appears to have been wholly against 
her contentions. With regard to war on land, however, different considerations apply. 

Id., p. 132. This last distinction was made because the German Government justified Captain Fryatt's 
execution on the ground that he was a franc tireur, that is, a civilian non-member of any fighting force 
who, without orders, snipes from behind cover at his unsuspecting enemy. Pitt Cobbett pointed out that 
the justification of making the franc tireur liable to "the severest treatment" has solid military reasons. 
"The essence of the franc tireur is not his commission of hostilities, but the element of treachery — he 
is a civilian one moment, a soldier the next. Having, as a peaceful civilian, watched the enemy soldiers 
pass, he then snipes at them from his cottage window." Pitt Cobbett finally contrasted the franc tireur 
with Captain Fryatt by pointing out that the franc tireur is under no form of discipline; there is no official 
superior to whom appeal can be made should he fail to observe the usages of war. Captain Fryatt, on 
the other hand, "though not a member of the armed forces of the Crown, was the head of a disciplined 
body of men, and was . . . acting under the advice of the British Admiralty." Id. In fact, it should be 
pointed out that Germany, perhaps not incorrectly, had, in both World Wars, insisted on treating the 
British Merchant Marine as a naval auxiliary service, since those ships travelled in convoys under armed 
escorts, were defensively armed and, whether travelling in convoy or not, or defensively armed or not, 
were required by the British Admiralty to take active measures of self-defense if attacked, to radio the 
position of any German U-boat seen by them, and to give the position of any observed underwater attack. 
If Germany argued this characterization of British merchant ships as naval auxiliaries in order to approbate 
their attacks on merchant ships, they should not have reprobated it in order to execute Captain Fryatt, 
whom they punished for being a civilian sniper, not a uniformed member of the auxiliary service. 

63. For a comment on both the limited size of the area and the German maritime activity (invasion 
and occupation of Norway), see Lauterpacht's Oppenheim, supra note 1, v. 2, p. 493, note 1. 

64. This was one of the notorious "Leipzig War Crimes Trials" held in Germany in 1921. See American 
Journal of International Law (Supp.), v. 16, p. 708 (1922). See also Pitt Cobbett, supra note 62, v. 2, pp. 156, 

158. 

65. American Journal of International Law (Supp.), supra note 64, p. 722. This case should be contrasted 
with the Dover Castle case, id., p. 704. The Dover Castle was also one of the Leipzig War Crimes cases. 
The vessel was a British hospital ship. She was clearly marked as such and was carrying no military 
personnel, munitions, or stores other than sick and wounded soldiers, members of the medical corps, and 
necessary supplies connected with that service. The accused commander of the submarine, Karl Neumann, 
was acquitted because the Dover Castle was sunk "in obedience to a service order of his highest superiors." 
Id., p. 708. It should be noted that his latter case was distinguished from the Llandovery Castle also on the 
ground that the commander did not, as did Patzig, order the massacre of the survivors in lifeboats, or 
those on, or clinging to, rafts and wreckage, and in the water. See Lauterpacht's Oppenheim, supra note 1, 
v. 2, p. 569. On the German Government's and High Command's policy, and order, of sinking hospital 
ships on sight, see id., pp. 504-06, note 1. See also the British refusal to recognize the immunity of German 
seaplane ambulances in the English channel rescuing German airmen. Id. pp. 506-07. 

66. The defenses of the "Laconia Order" (superior order commanding the killing of survivors of 
torpedoed ships) and of necessity were rejected. See Law Report of Trials of War Criminals (London: British 
Military Court, 1945), v. 1, p. 1 [hereinafter cited as War Crimes Reports]. 

67. War Crimes Reports, supra note 66, v. 9, p. 75. This case also involved the "Laconia Order." 

68. Id., v. 9, p. 82. 

69. See Tucker, supra note 26, p. 72, note 55, where the author writes: 

According to S. W. Roskill, with the one exception noted above [i.e., Helmuth von 
Ruchtesschell], the captains of German armed merchant raiders "generally behaved with reasonable 
humanity towards the crews of intercepted ships, tried to avoid causing unnecessary loss of life 
and treated their prisoners tolerably." (footnote omitted) 

70. Clearly the conflict between Argentina and the United Kingdom was a limited war, as to the 
participants, the area, and the weapons employed. For a quite detailed discussion of the seven zones 
proclaimed by both sides, for their characterization as "unusual," and for the comment that "[t]he rationale 
for these is difficult to determine," see William J. Fenrick, "The Exclusion Zone Device in the Law of 
Naval Warfare," Canadian Yearbook of International Law, v. 24, p. 92, at p. 107 (1987) [hereinafter cited 
as Fenrick]. This writer believes that, at least in part, the proclamation of these zones (except for the 
ill-advised last one proclaimed by Argentina, which was implicated in the unnecessary bombing of the 
tanker Hercules, see, Amerada Hess Shipping Corp v. Argentine Republic, 830 F. 2d 421 (2d Cir. 1987), reversed 
109 S. Ct. 683 (1989) ), helped to restrict the conflict to the disputed territory and localize the conflict. 
This writer agrees completely with Professor Howard S. Levie's comment in his contribution, "The 



200 Law of Naval Operations 

Falklands Crisis and the Law of War," in Alberto R. Coll and Anthony C. Arend, eds. The Falklands War: 
Lessons for Strategy, Diplomacy and International Law (Boston: George Allen & Unwin, 1985), p. 64 at p. 76 
[hereinafter cited as Levie], where he listed the reasons why, in his opinion, the laws of war were able 
to exert their restraining influence: 

First, this was a limited war, fought for limited ends with limited means. . . . The adversaries 
restricted their operations to the disputed territory, and refrained from military actions against 
the enemy's homeland; had it been conducted otherwise, the war would have been much more 
violent and destructive. . . . 

71. The date 1982, shown in the text as that of the commencement of the Persian Gulf Tanker War, 
is predicated on the Iraqi attack on Kharg Island on April 29, 1982, and the Iraqi announcement of a 
Maritime Exclusion Zone in the Gulf on August 12, 1982. The Iran-Iraq War in general, although limited 
as to participants, and as to area (but note the so-called "War of the Cities"), was not limited as to weapons 
(note the substantiated resort to gas warfare by Iraq, the latest example of which at the time of writing 
was reported in "Gas Explosion in United Nations," The Economist, August 6, 1988, p. 31). One can be 
thankful that neither side had, apparently, nuclear devices. Unlike the Falklands Conflict, the Iran-Iraq 
war did not evidence restraints as to means and methods of warfare, nor in the treatment of prisoners. 

72. See infra note 85 and accompanying text. 

73. Marston, supra note 18, at p. 539. 

74. See supra note 30 and the accompanying text. 

75. Levie, supra note 70, p. 65. 

76. Marston, supra note 18, pp. 540-41. See also the text accompanying note 18. 

77. Marston, supra note 18, p. 549. See Levie, supra, note 70, p. 65. A further example of the British 
enforcement of "the Defensive Bubble" was the sinking of the Argentine "fishing vessel," the Narwal. 
She was shadowing the British forces and was "a spy ship with an Argentine Navy Lieutenant Commander 
on board sending back information about the [British] fleet's movements." Christopher Dobson et al., 
The Falklands Conflict (Falmouth, Cornwall: Coronet Books, 1982), p. 104. See also, Levie, supra note 70, 
p. 67 [hereinafter cited as Dobson et al.]. 

78. Marston, supra note 18, p. 542. See also for a discussion of the British MEZ of April 30, 1982, in 
light of the Doenitz Judgment, supra note 61, and the U.S. Navy Department's Law of Naval Warfare (NWIP 
10-2) (Washington: U.S. Govt. Print. Off., 1955, as amended) [hereinafter cited as NWIP 10-2], in Fenrick, 
supra note 70. 

79. Marston, supra note 18, p. 542. 

80. Id., p. 549. For enforcement of this zone, see letter dated May 1, 1982, addressed to the President 
of the Security Council from the Permanent Representative of the United Kingdom to the United Nations. 
Dobson et al., supra note 77, p. 546. 

81. Marston, supra note 18, p. 549. 

82. Id. 

83. Levie, supra note 70, p. 66. 

84. Id. 

85. Supra note 70. The reversal of the Court of Appeals for the Second Circuit's judgment was on 
the ground that the Court of Appeals had erred in assuming jurisdiction over a foreign sovereign with 
regard to a claim that was not within the exceptions of the Foreign Sovereign Immunities Act of 1976. 
28 U.S. Code § § 1330, 1332, 1391, 1441, and 1602, et seq., especially § § 1604 and 1605. The Supreme 
Court also reversed the court below on the grounds: (1) That the United States' and Argentina's ratification 
of the Convention on the High Seas, Geneva, April 29, 1958, United States Treaties and Other International 
Agreements, T.I.A.S. No. 5200, v. 13, p. 2312, does not provide domestic United States courts with an 
independent basis of jurisdiction; and (2) the Alien Tort Statute of 1789, U.S. Code, Title 28, § 1750, 
does not provide an independent basis of jurisdiction. The Foreign Sovereign Immunities Act of 1976 
provides the sole basis of jurisdiction in such cases. 

86. Amerada Hess, supra note 70, p. 423. 

87. Id.- 

88. It should be noted that the United States sought to protect the neutrality of the Hercules, and the 
Government emphasized her neutral status to the Argentine Government. The court stated that: 

On May 23, 1982, Hercules embarked from the Virgin Islands, without cargo but fully fueled, headed 
for Alaska. On June 3, in an effort to protect United States interest ships, the United States Maritime 
Administration telexed to both the United Kingdom and Argentina a list of United States flag 
vessels and United States interest Liberian tankers (like Hercules) to ensure that these neutral vessels 
would not be attacked. The list included Hercules. 



Goldie 201 

Id. See also the court's comment that "it is beyond controversy that attacking a neutral ship in international 
waters, without cause for suspicion or investigation, violates international law." Id., p. 424. 

89. See Keesing's Contemporary Archives, Aug. 7, 1981, v. 27, p. 31006 [hereinafter cited as Keesing's]. 

90. It should be pointed out that damaging attacks by both sides on their opponent's oil installations 
began as early as September and October 1980. Id., pp. 31015-16. See also id., June 4, 1982, v. 28, p. 31517. 
For an outline of the events concerning the exclusion zones in the Persian Gulf Tanker War, see Fenrick, 
supra note 70, pp. 116-22; Ross Leckow, "The Iran-Iraq Conflict in the Gulf: The Law of War Zones," 
International and Comparative Law Quarterly, v. 37, p. 629 (1988) [hereinafter cited as Leckow]. 

91. Asylum Case (Colombia v. Peru), [1950] I. C. J., p. 266, at p. 276. 

92. The Court added the requisite psychological element by saying "and . . . this usage is the expression 
of a right appertaining to the state granting asylum and a duty incumbent on the territorial state." Id. 
See also Charles De Visscher, Theory and Reality in International Law, P.E. Corbett trans. (Princeton, N.J.: 
Princeton Univ. Press, 1957), pp. 148-49 [hereinafter cited as De Visscher], where the former World Court 
Judge wrote: 

From the assimilation of custom to tacit convention, which in our judgment is quite fictitious, 
must be distinguished the requirement of opinio juris sive necessitatis, regarded here as reflecting the 
attitude of power in relation to a given practice. In its judgment of November 20, 1950, in the 
case of the right of asylum (Colombia- Peru) — a judgment which fixes its jurisprudence on this 
subject — the International Court of Justice clearly asserted the necessity of this psychological 
element of custom, (footnotes omitted) 

93. See the quotation from De Visscher, supra note 92, and note 27 on that page in which the author 
discusses the definition in the Asylum Case. See also Statute of the International Court of Justice, art. 38, 
par. 1(b), which "recognizes the existence of a custom only if the practice which is its content has been 
'accepted as law.'" De Visscher, supra note 92, at p. 441. Again, in the North Sea Continental Shelf Cases 
(Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), [1969] I.C.J. , at 
p. 44, the Court reinforced its thesis in the Asylum Case with the statement that: 

Not only must the acts concerned amount to a settled practice, but they must also be such, or 
carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory 
by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of 
the subjective element, is implicit in the very notion of the opinio juris sive necessitatis. 

94. Stone, Legal Controls, supra note 1, p. 508. 

95. Id., at pp. 508-09. Stone took his quotation from Statement of the Measure Adopted to Intercept the Seaborne 
Commerce of Germany, Misc. No. 2, 1916, Cmd. 8145, p. 4. 

96. See, e.g., Anthony A. D'Amato, The Concept of Custom in International Law (Ithaca, N.Y.: Cornell 
Univ. Press, 1971), p. 72, where he writes: "Kopelmanas, following the old theories of Puchta and Savigny, 
suggests that 'social necessity' is the basis of opinio juris." (Footnotes omitted) 

97. Thus D. P. Simpson, Cassell's New Latin Dictionary (New York: Funk & Wagnalls Co., 1960), p. 
778, tells us the use of sive "in an alternative conditional clause, whether . . . or . . ., sive (or seu) . . . sive 
(or seu) )." See also id., p. 558, for its use in a disjunctive sense. 

98. C.H.M. Waldock, "The Legal Basis of Claims to the Continental Shelf," Grotius Society Transactions, 
v. 36, p. 115, at p. 143 (1951). See also H. Lauterpacht, "Sovereignty over Submarines Areas," British Yearbook 
of International Law, v. 27, p. 376, at pp. 393-420 [hereinafter cited as Lauterpacht, Submarine Areas]; Gilbert 
Gidel, "The Continental Shelf" (L.F.E. Goldie trans.), Annual Law Review (Univ. of West Australia), v. 
3, p. 87, at pp. 102-103 (1954-56); L.F.E. Goldie, "Some Comments on Gidel's Views," id., p. 108, at 115- 
21; L.F.E. Goldie, "Australia's Continental Shelf: Legislation & Proclamations, " International and Comparative 
Law Quarterly, v. 3, p. 535, at pp. 557-59 (1954). But see "Report of the International Law Commission 
to the General Assembly Covering the Work of its Eighth Session, 23 April-4 July 1956," U.N. Doc. 
A/3159, [1956] Yearbook of the International Law Commission, v. 2, p. 253, at pp. 295-99. Note especially 
commentary (8) on draft article 68. Id., p. 298. 

99. D. P. O'Connell, Influence of Law on Sea Power (1975), p. 165 [hereinafter cited as O'Connell, Sea 
Power]: 

When France was threatened by a plague of protesting yachts (which largely failed to materialize) 
the theoretical problem was deliberately made actual. Eventually, in 1973, France's notice to 
mariners went beyond declaring a zone dangereuse and for the first time in the history of nuclear 
testing amounted to a temporary appropriation of an area of the high seas from which all shipping 
could be excluded. One yacht was, in fact, boarded; but to hustle away H.M.N.Z.S. Taranaki or 



202 Law of Naval Operations 

Canterbury was another matter. The outcome was a maritime pavane, executed with some grace 
and disparity, in which New Zealand made her point and France continued her testing. 

Had the International Court of Justice at the Hague found that the enclosure of the seas for 
the purpose of French nuclear testing was illegal, this might have ended speculation upon the legality 
of naval operational zones; if it had found that the enclosure was not illegal, it would have put 
a premium upon it. (footnotes omitted) 

100. Myres S. McDougal and Norbert A. Schlei, "The Hydrogen Bomb Tests in Perspective: Lawful 
Measures for Security," in Myres S. McDougal et al., Studies in World Public Order (New Haven, Conn.: 
Yale Univ. Press, 1960), pp. 763, 766-68, 802-07, and note 172, where, at the last citation, the authors 
point out that: 

The United States has established well over 400 such areas [that is, areas designated in "warnings 
to mariners" or similar notes of dangers to navigation either indefinitely or at certain times], ranging 
in size from less than a square mile to the vast area surrounding the Bikini and Eniwetok atolls, 
and in duration from a period of a few hours to many years. Other naval powers, including the 
United Kingdom, Canada, Australia, and the Soviet Union, have engaged in the same practice 
for similar purposes. Ordinarily, no claim is made to enforce warning areas by means of formal 
sanctions, and the normal responsibility for taking reasonable measures at the scene to avoid 
accidents is considered to rest with the authorities using the area for dangerous operations. Some 
danger areas are, however, announced in terms which make clear that the authorities using them 
are expected to enforce observance. 

In rare instances, criminal penalties are provided for unauthorized intrusions. In the Defence 
(Special Undertakings) Act of 1952, the Commonwealth of Australia created a prohibited area 
of more than 6,000 square miles, most of it high seas, surrounding one of the Monte Bello Islands 
in Western Australia, where atomic tests have been conducted by the United Kingdom, (authors' 
emphasis; footnotes omitted) 

See also O'Connell, Sea Power, supra note 99, and the reference to the more recent French policy of creating 
sanctions for breaches of its prohibitions against vessels intruding into its South Pacific nuclear testing 
area. 

101. See, e.g., Lauterpacht, Submarine Areas, supra note 98, pp. 393-98; J.D. MacGibbon, "Some 
Observations on the Part of Protests in International Law," British Year Book of International Law, v. 30, 
p. 293. 

102. D'Amato, supra note 96, p. 99. 

103. Id. 

104. Id. 

105. See supra text accompanying note 83. 

106. See D'Amato, supra note 103, and quotation therefrom in accompanying text. 

107. See supra, notes 84 and 85 and accompanying text. 

108. The phrase "Military Economy" describes one of the "principles of war" (meaning, not legal rules 
but the prudential guides to waging a successful war) as prescribing that the commander should use enough 
force for the purpose of achieving his objective. It proscribes the alternative of squandering resources. 
Commanders, however, generally prefer to err on the side of "too much" rather than "too little, too 
late." Von Clausewitz writes, regarding this principle: 

In this manner, he who undertakes War is brought back again into the middle course, in which 
he acts to a certain extent upon the principle of applying so much force and aiming at such an 
object in War as is just sufficient for the attainment of its political object. 

Karl von Clausewitz, On War, Graham transl., 1908 Anatol Rapoport ed. (London: Penguin Classics, 1968), 
p. 375 [hereinafter cited as Clausewitz]. See also id. at p. 423, note 59, where the editor, Dr. Anatol Rapoport 
observes: 

Here Clausewitz admits a rational basis for a limited war. Still, in his view, the limitation of military 
objectives depends entirely on the political objectives, that is, war effort is to be commensurate 
with what is demanded from the enemy and what can be achieved. 

See also Archer Jones, supra note 13, at pp. 630-34 and 670-75. 



Goldie 203 

109. Clausewitz always saw "absolute war" as being subject to "three modifying factors;" but he defined 
it for heuristic purposes as embodied in a contest that can "spring up quite suddenly and spread to the 
full in a moment" and consist of a "single absolute blow wreaking irreparable harm upon the enemy," 
that is, a harm in absolute terms "from which he may never recover." Such a blow is not "a passing 
evil." See Clausewitz, supra note 108, pp. 367-71. See also L.F.E. Goldie, "Book Review," Southern California 
Law Review, v. 36, p. 636, note 34 (1963). This review discussed, and at times compared, two annotated 
translations of General V.D. Sokolovskii, Soviet Military Strategy, Dinerstein et al. trans., Rand Corporation 
Research Study (Englewood Cliffs, N.J.: Prentice-Hall, Inc., 1963), and V.D. Sokolovskii, Military Strategy, 
Richard Gar thoff trans. (New York: Frederick A. Prager, Inc., 1963). It should be noted that the accurate 
translation of the book's title from the Russian original is "Military Strategy." 

110. See supra quotation accompanying note 108, and especially the reference to "military economy" at 
that place. 

111. Lauterpacht's Oppenheim, supra note 1, v. 2, p. 218 (emphasis supplied). 

112. The "three limiting factors" Clausewitz described in "real," as distinct from "philosophical," war 
were: (1) The "non-conducting medium which hinders the complete discharge" of the will to wage war. 
This includes "the number of interests, forces and circumstances of various kinds . . . which are affected 
by the War through the infinite ramification of which logical consequences cannot be carried out . . . ;" 
(2) "The natural inertia and friction" of the parts that go into making of a "real war" as distinct from 
Clausewitz 's "philosophical war;" and (3) The "vagueness and hesitation (or timidity) of the human mind. " 
Clausewitz, supra note 108, pp. 368-69. Note also Clausewitz *s comment, "Activity in war is movement 
in a resistant medium." Id., p. 165. 

113. Lauterpacht's Oppenheim, supra note 1, v. 2, pp. 226-36; Stone, supra note 1, Discourse 18, "Ideological 
and Technological Factors in the Evolution of the Law of War," pp. 335-41. 

114. Clausewitz, supra note 108, at 267-70. 

115. Id. 

116. Id., pp. 102-03. Here Clausewitz defines his thesis of the "utmost use of force" with the conclusion 
that, "We therefore repeat our proposition, that War is an act of violence pushed to its utmost bounds; 
as one side dictates the law to the other, there arises a sort of reciprocal action." 

117. Id. 

118. Id. 

119. Levie, supra note 70, p. 76. See also Clausewitz, supra note 108, p. 403, where that famous author 
gives us the following interesting metaphor: 

Thus policy makes out of the all-overpowering element of War a mere instrument, changes the 
tremendous battle-sword, which should be lifted with both hands and the whole power of the 
body to strike one and for all, into a light handy weapon, which is even sometimes nothing more 
than a rapier to exchange thrusts and feints and parries. 

120. Roger Trinquier, Modern Warfare, Daniel Lee trans. 1964, (first published in French in 1961), pp. 
19-20 and passim. Indeed Trinquier quoted Clausewitz 's stigmatization of "self-imposed restrictions" as 
equally applying in guerilla warfare where Clausewitz 's maxim "to introduce into the philosophy itself 
a principle of moderation would be an absurdity" also applies. Id., p. 22. 

121. Lauterpacht's Oppenheim, supra note 1, v. 2, pp. 796-97. See also S. W. D. Rowson, "British Prize 
Law, 1939-1944," Law Quarterly Review, v. 61, p. 49 at p. 57 (1945), where the author states: 

In this war, except in the case of Germany, reprisals were instituted immediately war was declared, 
and in effect it was the outbreak of the war that was the breach of international law which gave 
His Majesty the right to initiate reprisals. One cannot help feeling that the time has come to remove 
any notion that such measures, by being termed reprisals, are extraordinary. Rather should it be 
made clear to the world in time of peace that in the event of this country being involved in war, 
the whole system of economic warfare as in force in this war will be reintroduced. It is now clear 
to all that neutrals cannot carry on during a major war without any interference whatsoever, and 
it is suggested that the certainty that these measures would be adopted if occasion required would 
be a valuable addition to the sanctions behind any new international order. In this connection it 
is interesting to recall that in both the last and the present wars the neutral nations who were 
most vociferous in their complaints of the British exercise of belligerent rights at sea have ultimately 
become allied to Great Britain and shared in the advantages of her system of waging economic 
warfare. 

122. See supra § II. D. 

123. James Mitchell, ed., The Random House Encyclopedia (New York: Random House, 1977), p. 2576. 

124. Id., p. 2463. 



204 Law of Naval Operations 

125. Supra, note 70. See also, text accompanying notes 85-87. 

126. See supra note 121 and accompanying text. See also, Stone, Legal Controls, supra note 1, at p. 510, 
and quotation from Stone accompanying note 129, infra. 

127. Leckow, supra note 90, at pp. 635-36. 

128. Id., p. 635. 

129. Stone, supra note 1, pp. 606-07 (footnote omitted). 

130. See supra text accompanying note 73. 

131. Fenrick, supra note 70, p. 124. 

132. See supra text accompanying notes 21-23. 

133. See supra quotation in text accompanying note 75. See also Levie, supra note 70, at p. 65, where 
he also wrote of this early proclamation, "However, this was a perfectly valid and successful piece of 
'disinformation' by the British;" and more generally, the permissible use of misinformation as a ruse de 
Guerre. O'Connell, Law oj the Sea, supra note 9, v. 2, p. 1140. 

134. See Leckow, supra note 90, p. 634, where he demonstrated that the British forces satisfied the 
proportionality requirement. He wrote: 

Ships regarded as hostile were subject to attack without warning. In order to claim the status 
of "non-hostile", vessels required the authorisation of the Ministry of Defence in London. Adopting 
a very balanced approach, Britain sought to apply the measures primarily against craft engaging 
in military operations. Argentinian merchant ships were permitted to enter the zone with British 
approval. Refining the procedures of the two world wars, Britain precisely defined the limits of 
the area and provided ample notification to all parties. Further, Britain was careful to observe 
proportionality, the system being enforced with a minimum of violence. Thus, British forces 
avoided any conflict with neutral ships. Even unauthorised Argentinian merchant craft were merely 
compelled to leave the area with no incidents of direct attack occurring, (footnotes omitted) 

135. See supra notes 18, 76-80, 125 and accompanying texts. 

136. United Nations, Security Council, Resolution 502, April 3, 1982, reprinted in International Legal 
Materials, May 1982, v. 51, p. 679. 

137. See O'Connell, Law of the Sea, supra note 9, pp. 1097-98. See also O'Connell, Sea Power, supra note 
99, at pp. 76-77. 

138. Commander's Handbook, supra note 4, par. 7.7.5. See also text accompanying note 8 supra. 

139. Supra note 136. 

140. See supra text accompanying notes 85-88. 

141. O'Connell, Law of the Sea, supra note 9, v. 2, p. 1099. 

142. Id. 

143. Id. 

144. Id. In commenting on the situation, O'Connell also states: 

The naval operations conducted by India against the port of Karachi and in the Gulf of Bengal 
took no account of international law, which was, indeed deliberately put to one side by the Indian 
naval staff. 

145. See supra text accompanying notes 16-18. 

146. See supra text accompanying notes 21-23. 

147. See supra text accompanying notes 35-36. 

148. See supra notes 64-69 and accompanying text. 

149. See supra text accompanying note 67. 

150. See supra text accompanying note 66. 

151. See supra text accompanying note 76. 

152. O'Connell, Sea Power, supra note 99, p. 168. 

153. "The Nyon Agreement," Sept. 14, 1937, League of Nations Treaty Series, v. 181, p. 137, reprinted in 
American Journal of International Law (Supp.), v. 31, p. 183 (1937); and "Agreement Supplementary to the 
Nyon Agreement," Sept. 14, 1937, League of Nations Treaty Series, v. 181, p. 151, reprinted in American Journal 
of International Law (Supp.), v. 31, p. 183 (1937). For a history and commentary on the Nyon Agreements, 
see, L.F.E. Goldie, "Commentary [on the 1937 Nyon Agreements]," in N. Ronzitti, The Law of Naval 
Warfare: A Collection of Agreements and Documents with Commentaries (Dordrecht/Boston/London: Martinus 
Nijhoff Publishers, 1988), p. 489. 

154. O'Connell, Sea Power, supra note 116, p. 168. 



Jacobson 205 

Chapter VIM 
The Law of Submarine Warfare Today 

by 
Jon L. Jacobson* 

Introduction 

The roles of military submarines have evolved throughout the twentieth 
century. In wartime, these roles have included coastal defense, 
harassment of enemy fleets, and, especially in World War II, hunting and 
destroying the seaborne commerce that supported the enemy's war efforts. 
Today, two principal roles for U.S. submarines, at least in any future war 
with the Soviet Union, are probably as anti-submarine weapons (attack 
submarines) and as strategic weapons platforms (ballistic missile submarines). 
Other missions, however, could include coastal defense, attacks on the 
enemy's surface fleet, projection of force ashore, and commerce warfare. 1 

The laws of war have never been comfortable with the submarine's unique 
combination of stealth and vulnerability. As will be explained below, it is 
this peculiar mix of strength and weakness that can be blamed as the root 
cause of the legal dilemma, particularly as it relates to the submarine's role 
as a commerce raider. The legal responses to this twentieth-century weapons 
platform have ranged from early proposals for its abolition to justification 
of its use under the rules of reprisal to tolerance of it as an effective war 
machine with characteristics that regrettably require some adjustments in the 
traditional laws of war. 

The U.S. Navy's new Commander's Handbook on the Law of Naval Operations 
(NWP 9) includes references to the laws of naval warfare that specifically 
address the submarine weapons system and also rules that apply, or can apply, 
to submarines and their roles in wartime. The ultimate purpose of this chapter 
is to analyze these direct and some of the indirect references to the law of 
submarine warfare. Before that discussion, however, the chapter will first 
briefly review the history of both the submarine as a weapons system and 
earlier approaches to the legal dilemma presented by the submarine and its 
wartime uses. Next, today's submarines and their wartime roles will be 
described. This will be followed by a discussion of the present state of the 
law of submarine warfare. Finally, the chapter will point out and analyze 
the submarine references in the Commander's Handbook. 



206 Law of Naval Operations 

History 2 

The submarine is a war machine of the twentieth century. Although 
documented uses of submersible devices against the enemy in wartime 
occurred as early as the American Revolutionary War, and in fact the 
submarine's legality was considered at the 1899 Hague Peace Conference, 
deployment of submarines as a significant part of a nation's naval forces began 
only in the early years of the present century. Certainly the international 
law issues that form the core of the current chapter achieved real significance 
only with the conduct of naval warfare during the First World War. 

The main advantage of a submarine over a surface warship is, of course, 
its underwater capability. Militarily, this translates into the ability to hide 
from the enemy and the ability to approach a target from its hidden position 
to carry out surprise attacks. The disadvantages of the submarine can be 
viewed as the price it must pay for the principal advantage of stealth, and 
these disadvantages, especially for earlier submarines, have been considerable. 
Submarines used by the belligerents in both world wars were small and 
cramped. They were slow when running submerged on batteries, which they 
could not do for long periods of time without coming to the surface to 
recharge, and were not all that fast when running on the surface under diesel 
power. Moreover, unlike heavily armed surface warships, the submarines of 
the world wars were vulnerable on the surface to attacks, even from lightly 
armed merchant vessels, and to rammings. While these submarines were 
armed with deck guns and were also capable of laying mines, their principal 
weapon was the self-propelled torpedo. 

At the start of the First World War, submarines were assigned the roles 
of coastal defense against enemy warships and harassment of enemy warship 
fleets. Partly because of their disadvantages — low escape speeds, limited 
submerged times, vulnerability to attack on the surface — they were soon 
assigned the task of interdicting the seaborne commerce traffic that supported 
the enemy's war effort. This role of commerce raider then became the main 
wartime assignment for German submarines in World War I and the 
submarines of most of the belligerents in World War II. As we shall see, 
it is the anti-commerce role that has created the largest set of legal 
controversies concerning the military uses of submarines. 

Since the Second World War, the evolution of the military submarine has 
proceeded in giant strides. With new developments have come new projected 
wartime roles and reconsideration of some of the earlier roles. The harnessing 
of nuclear energy, for propulsion and for weapons, has probably affected the 
nature and role assignments of the submarine more than any other preexisting 
war machine. Nuclear powered submarines are relieved of the necessity to 
surface or come to shallow snorkel depth to recharge batteries and can 
consequently remain in submerged hiding for extremely long time periods 



Jacobson 207 

and underwater transits. And, because the undersea remains an excellent place 
of concealment despite improved anti-submarine-warfare (ASW) devices and 
techniques, modern nuclear powered submarines have proved effective in 
their postwar deterrent role as roving submerged platforms for nuclear-armed 
ballistic missiles. 

Other new developments in the design and construction of submarines have 
provided them with greater underwater speed, enough speed to match that 
of most surface warships (although this comparison probably says as much 
or more about the development of surface fleets as it does about submarine 
advances). Weaponry for submarines has also expanded in variety and range. 
While presumably only strategic missile submarines (SSBNs) are armed with 
ballistic missiles for their special deterrent role, the other principal category 
of submarines, attack submarines (SSNs, if nuclear powered, almost 
exclusively the case in the U.S. Navy today; SSs, if diesel-electric powered) 
have had their weapons array and targeting systems enhanced in recent years. 
Torpedoes have been greatly improved, of course, but modern attack 
submarines are now capable of launching a variety of anti-ship, anti- 
submarine, and land-target missiles, including cruise missiles, with 
conventional or nuclear warheads. Moreover, most of these weapons can be 
launched at much greater distances from the targets — even over the horizon — 
than was true for submarine weapons during the world wars. Today's 
submarines are also capable of sophisticated mine-laying. 

Because of these advances, today's fighting submarines are in many respects 
as different from those that fought in World War I as those early submarines 
were different from the surface naval vessels that preceded and coexisted with 
them. But it is this earlier distinction that caused the initial legal controversy, 
a dispute that continues to this day. Indeed, the entire twentieth-century 
history of the submarine as a major implement of naval warfare has occurred 
in the face of attempts to apply to submarines laws of war that were essentially 
devised to regulate the use of latter-nineteenth-century surface warships, and 
in particular the interaction of these surface vessels with merchant shipping 
of the same time period. It is not surprising that some legal friction has 
resulted. 

Arising out of the closely related principles of military necessity and 
humanity, the relevant laws of war were, and are, designed to protect 
noncombatant crews and passengers aboard merchant ships where 
circumstances make these vessels legitimate objects for destruction by a 
belligerent in wartime. The 1908 Declaration of London stated the rule that 
a neutral merchant vessel (assuming it was otherwise lawful to sink it) could 
be sunk by a belligerent ship only after the warship had provided for the safety 
of the passengers and crew. 3 This might be accomplished by taking the 
protected persons on board the warship or another vessel and later 
transporting them to an appropriate port or, where geography and sea 



208 Law of Naval Operations 

conditions were favorable, placing the passengers and crew members in the 
merchant ship's lifeboats with some good assurance that they could safely 
reach a nearby shore. Although this rule said nothing about enemy merchant 
ships, other rules of naval warfare of course generally allowed the sinking 
of an enemy warship in non-neutral waters without warning or removal of 
combatant crew members. 4 

The First World War provided the test for compliance with these rules 
by submarines. As noted above, the main advantage of the submarine is its 
capability for surprise attack from its underwater hiding place. Because of 
its slow underwater speed, its limited submerged time, and its vulnerability 
on the surface, however, the World War I submarine was usually not much 
of a match for the warships of the enemy's surface fleet. Surface warships 
were too fast for a submarine running submerged, and the most important 
targets — battleships — were very difficult to sink. Even if a submarine was 
successful in striking a legitimate warship target, other ships in the enemy 
fleet were likely to detect and chase down the submarine and attack it with 
depth charges or force it to the surface, where its destruction or capture was 
virtually assured. Isolated, older second-line warships and, then, merchant 
ships thus became the preferred targets for submarines. 

In accordance with the traditional rules reflected at least in part by the 
London Declaration of 1909, 5 a merchant vessel that was found to be in some 
way supporting the enemy's war effort — for example by carrying a cargo 
of contraband arms to the enemy — and which could not safely be escorted 
to port for adjudication as a prize of war, could be sunk after the safety of 
the passengers and crew had been provided for. The rules allowed a belligerent 
warship to stop a suspect merchant ship and conduct a visit and search to 
determine its involvement in the enemy war effort and then, if circumstances 
warranted, either capture it as a prize or take the noncombatants off board 
and sink it. 6 This scenario was, of course, somewhat unrealistic if the warship 
was a submarine. Surfacing to conduct visit and search procedures not only 
sacrificed the submarine's main advantage of surprise attack but also made 
it vulnerable to ramming even by an unarmed merchant vessel. Furthermore, 
surface escort of the merchant to port for prize adjudication was obviously 
dangerous for the submarine and generally interfered with its military 
mission, while the alternative of sinking was made impracticable by the 
inability of the already cramped submarine to provide space for the merchant 
ship's crew and any passengers, and, where another suitable vessel was not 
available to take these persons to port, weather and geography did not often 
combine to allow them to be left safely in the ship's lifeboats. 

Despite these difficulties, Germany directed its submarines to comply with 
the traditional prize rules during the early part of the First World War, and 
in fact German commanders made efforts to comply. However, by January, 
1917, the difficulties already noted had combined with other circumstances 



Jacobson 209 

to cause Germany to rescind its earlier directive and institute unrestricted 
submarine warfare, including the sinking without warning of neutral 
merchant ships, in a self-declared war zone. These "other circumstances" 
included a British directive to its merchant ships to disguise themselves as 
neutrals and to ram submarines. Britain also apparently armed its merchant 
ships and ordered them to open fire on German submarines. Thus, Germany 
attempted to justify its decision to wage unrestricted submarine warfare in 
its war zone on the ground that it was carrying out a reprisal against these 
British violations of the traditional laws of naval warfare. 7 

Whatever the merits of this German justification (and it probably had some 
technical merit), 8 German U-boat attacks on merchant vessels without prior 
warning or provision for the safety of crew and passengers led not only to 
United States entry into the First World War but also to widely felt 
consternation over the submarine as a military weapon, consternation that 
continued beyond the conclusion of the war. The naval warfare experience 
of the war led to renewed proposals for the submarine's abolition in the 
postwar period. To some — especially the British, joined at times by the United 
States — the submarine had proved itself a horrifying offensive weapon, 
generally ineffective except when used against merchant shipping in violation 
of the humanitarian principles that rightly formed the core of the international 
laws of war, a use for which pronounced tendencies developed, and therefore 
an instrumentality of war that must be outlawed. 9 While not condoning 
German behavior during the war, others contended that the submarine had 
demonstrated its efficiency as a defensive weapon even when confined to 
"honorable warfare" and should consequently be restricted but not 
abolished. 10 In the naval conferences that followed World War I, the 
abolitionists failed to achieve their goal, but the submarine, along with other 
naval warships, was eventually the subject of limitation and restriction. Thus, 
article 22 of the 1930 London Naval Treaty, 11 reaffirmed in the London 
Protocol of 1936, 12 states: 

The following are accepted as established rules of International Law: 

(1) In their action with regard to merchant ships, submarines must conform to the rules 
of international law to which surface vessels are subject. 

(2) In particular, except in the case of persistent refusal to stop on being duly summoned, 
or of active resistance to visit or search, a warship, whether surface vessel or submarine, 
may not sink or render incapable of navigation a merchant vessel without having first 
placed passengers, crew and ship's papers in a place of safety. For this purpose the ship's 
boats are not regarded as a place of safety unless the safety of the passengers and crew 
is assured, in the existing sea and weather conditions, by the proximity of land, or the 
presence of another vessel which is in a position to take them on board. 

The 1936 Protocol maintains this provision in effect. The United States 
remains a party to the Protocol, as do the Soviet Union and over 40 other 



210 Law of Naval Operations 

states, 13 despite the article's seeming inconsistency with the practices of 
belligerents, including the United States, in the Second World War. 

At the beginning of World War II, Germany again attempted to abide by 
the submarine warfare rules, as then and now set forth in the London Protocol. 
Again, however, this attempt was thwarted by the arming of British merchant 
vessels and the practice of convoying merchant ships under the protection 
of surface warships and aircraft, and the order from the British government 
to its merchant ships directing them to fire on or ram submarines on the 
surface. Moreover, Britain ordered its merchant vessels to provide 
intelligence on the positions of any sighted submarines. In many other respects, 
it can be said that the British government, by these directives and by otherwise 
exercising effective wartime control over the British merchant fleet, largely 
incorporated all of its merchant ships into its war-fighting efforts. Under these 
circumstances, it became possible to argue that these vessels were no longer 
"merchant vessels" or "merchant ships" as those terms were used in the 
Protocol to describe the ships entitled to the protections there set forth. 14 In 
response to the British practices, Germany soon directed its U-boats to wage 
unrestricted warfare in broadening ocean zones. As in the case of Germany's 
First War practices, some analysts have suggested that this Second War 
response was a legitimate reprisal. 15 

As World War II continued, other belligerents also adopted unrestricted 
submarine warfare methods against enemy merchant ships (though most also 
achieved greater success in pitting their submarines against enemy warships 
than was true for the belligerents in the First World War). 16 The most 
prominent example is that of the United States, which ordered unrestricted 
submarine attacks against all Japanese shipping in the Pacific at the very 
beginning of its involvement in the war. 17 United States submarines in fact 
waged unrestricted war against the Japanese, including the sinking of 
merchant ships without warning, throughout the war. Justifications for the 
U.S. departure from the traditional law of naval warfare in this respect remain 
unclear. The U.S seemingly justified these attacks not on the ground of reprisal 
but on the fact that Japanese merchant ships were usually armed, provided 
intelligence to the Japanese military, and were otherwise integrated into 
Japan's war efforts and therefore were not entitled to the protections afforded 
to the "merchant ships" of the 1936 Protocol. The fact remains, however, 
that unrestricted submarine warfare was ordered by the U.S. against Japan 
throughout the Pacific Ocean within hours after the 7 December 1941 
bombing of Pearl Harbor, before the U.S. could know whether Japan would 
enlist its merchant fleet in the war effort. The initial order was fairly clearly 
given in response to and in retaliation for the surprise Japanese attack on Pearl 
Harbor and therefore carries more than a little implication of reprisal as its 
justification. 18 



Jacobson 211 

Germany's submarine warfare practices in the Second World War were 
the subject of the principal adjudication of the legal rules under discussion: 
the trial of Admiral Karl Doenitz by the International Military Tribunal at 
Nuremberg. Admiral Doenitz commanded Germany's submarine forces and 
later in the war became commander of all German naval forces. He was 
charged at Nuremberg with "waging unrestricted submarine warfare 
contrary to the Naval Protocol of 1936. " 19 Doenitz 's counsel argued in his 
behalf that German U-boat attacks on British merchantmen were justified 
by the facts that these ships were armed or convoyed, provided intelligence 
to the British military, and in other ways contributed to the British and Allied 
war efforts. 20 While this argument can perhaps be characterized as one based 
on the law of reprisal, it more clearly rests on the notion that merchant vessels 
actively participating in the enemy's conduct of warfare are thereby removed 
from the protections afforded to true merchantmen by the laws of naval 
warfare as, in this case, embodied in the Protocol. The Nuremberg Tribunal 
did indeed accept Admiral Doenitz 's defense to the extent that it refused to 
find that he was guilty of Protocol violations in authorizing unrestricted 
submarine attacks against British merchant ships that were armed. 21 In this 
respect, the Tribunal's judgment might be interpreted to mean that enemy 
merchant vessels and their passengers and crews are legitimate targets of 
destruction, without warning and without provision for the safety of the 
people on board, if these vessels have become meaningfully integrated into 
the enemy's warfighting capabilities. Critics of this broad a reading of the 
Tribunal's judgment can protest that the result too heavily discounts the 
humanity side of the balance that the laws of war attempt to strike between 
military necessity and humanity. A more accurate analysis of the Tribunal's 
ruling would perhaps emphasize the immediate threat to a submarine's safety 
posed by the arming of enemy merchant ships or other real and imminent 
threats to the submarine's safety that would result from the attempt to abide 
by the Protocol's provisions. Cargo and passenger carriers that were armed 
with weapons and the intent to engage an enemy submarine might be properly 
viewed as combatant vessels and thus subject to surprise attack. On the other 
hand, the mere fact that an enemy merchant vessel was assisting the enemy's 
war effort in other ways would not necessarily provide justification for the 
destruction of the vessel without warning if compliance with the protocol 
would not expose the submarine to serious risk of harm. 

The International Military Tribunal did find Doenitz guilty of violating 
the London Protocol by declaring submarine operational areas within which 
German U-boats could attack neutral merchant ships without prior warning. 22 
Professor Mallison has criticized the Tribunal for failing to distinguish 
between those neutral vessels that were helping the Allied cause and 
consequently, in Mallison 's view, were legal targets and those that were 
genuinely engaged in innocent international commerce and therefore 



212 Law of Naval Operations 

protected from attack. 23 In any case, the Tribunal was careful to note that 
it was not imposing punishment for this particular violation in its sentencing 
of Admiral Doenitz because the British and the Americans had declared and 
enforced similar operational zones with like risks to neutral shipping. 24 Some 
military analysts have suggested that the Tribunal^ judgment thereby 
recognized the legitimacy of unrestricted submarine warfare against 
merchant shipping and therefore that the London Protocol was no longer, 
or never had been, binding. 25 This analysis is clearly erroneous. The Tribunal 
without question ruled that Doenitz had violated the Protocol. Because of 
the Allied practices, however, his sentence was "not assessed on the ground 
of his breaches of the international law of submarine warfare," including among 
these "breaches" unrestricted submarine warfare against neutral shipping. 26 
The clear implication is not that the Tribunal had found some sort of 
customary practice changing the rules of the Protocol but that all parties had 
violated these rules. The partial clemency granted Doenitz was due to its 
application of a version of the "unclean hands" doctrine and not to any 
recognition of the lawfulness of unrestricted commerce warfare. 

The Tribunal also found Admiral Doenitz guilty of ordering his submarine 
commanders to refuse to rescue survivors of their sunken targets unless "their 
statements would be of importance for your boat." 27 Accepted rules of naval 
warfare plainly imposed on warship commanders the duty to use considerable 
efforts to search for and rescue survivors (including combatants), 28 and 
Doenitz was found guilty of violating these rules. 29 It has been pointed out 
that the admiral's order was in response to an unwarranted and probably 
illegal air attack on German submarines attempting to carry out their duty 
to rescue survivors of a torpedoed troopship. 30 It is, however, questionable 
whether the law of reprisal would justify such an anti-humanitarian measure. 

The Tribunal refused, on the ground of insufficient evidence, to find that 
Admiral Doenitz was guilty of the more serious crimes of ordering German 
commanders to kill survivors of U-boat attacks. 31 Helpless survivors and other 
shipwrecked persons, even if enemy military crews, are not lawful objects 
of attack, since they are not or are no longer combatants. 32 

The rescue issue is complicated again by the fact that submarines of the 
world wars did not have adequate space for taking on board rescued persons. 
Further, submarines surfacing for rescue operations in World War II were 
vulnerable to air attack. The International Military Tribunal at Nuremberg, 
in fact, received evidence that the U.S. directed its submarines in the Pacific 
during that war to attempt survivor rescue only if this did not endanger the 
submarines or interfere with their military missions. 33 And, because of the 
limited space in the submarines, U.S. rescue efforts often consisted only of 
supplying survivors with rubber rafts or provisions. 34 

What can be said of the state of the law of submarine warfare as it emerged 
from the experiences of the two world wars? First, it can be said that the 



Jacobson 213 

submarine was a lawful weapon of war and was to be treated by the laws 
of naval warfare generally like any other warship. Thus, in wartime it could 
attack an enemy warship without warning and despite the stealth element 
that was part of the early abolitionist reactions against this undersea weapon. 
On the other hand, targets that were immune from attack by any means — 
hospital ships and coastal fishing vessels, for example — were also illegal 
targets for submarines. Survivors and shipwrecked persons could not be killed. 

The rules concerning merchant ship targets were, as already shown, more 
complicated and became considerably more so as a result of the world wars. 
This was true for all warships but especially for submarines because of their 
unique characteristics. Developments and perceptions that came about 
particularly during the Second World War added to the list of complexities 
that the nature of the submarine had already created. The distinction between 
merchant ships and combatants, a relatively easy one in the nineteenth 
century, became confused in the big wars of the twentieth century, both 
because belligerent governments armed their merchant fleets and took other 
steps to integrate them into the overall warfighting effort, and because of 
the new perception that entire societies, and not just their military forces, 
were at war. Related to this perception was the notion that a broader range 
of civilians were necessarily, even appropriately, exposed to the weapons of 
war, which probably led to a dilution of the strength of the previously felt 
horror at the maiming and killing of non-military crews and passengers of 
targetable merchant ships. The distinction between belligerent and neutral 
merchant vessels also became difficult to draw because of practices that 
developed during the world wars. Warships and belligerent merchant ships 
would disguise themselves as neutrals, and supposed neutrals in fact 
participated in various ways in the war efforts of the belligerent states. 35 In 
addition, World War II brought the real threat of air attack to add to the 
vulnerability of surfaced submarines. 

These practices and complications placed considerable stress on the 
nineteenth-century-based rules reflected in the 1936 London Protocol and 
undoubtedly induced some significant qualifications, if not outright changes, 
of those rules. The major law-of-war issues raised by submarine warfare 
against merchant ships were, and are, three: (1) Is a merchant ship a lawful 
target for sinking? (2) If so, what, if any, provisions must be made for the 
safety of crew and any passengers? (3) Is the submarine that sinks a merchant 
ship required to rescue survivors? Note the dilemma posed for submarines 
by each of these questions: (1) Visit and search to determine targetability 
deprives the submarine of its stealth advantage and renders it vulnerable to 
attack, and determination of the legitimacy of the target by other means is 
often difficult or impossible. (2) Surface vulnerability and lack of space for 
passengers make it dangerous and nonfeasible for submarines to provide for 



214 Law of Naval Operations 

the safety of persons on board merchant vessels or (3) to effect rescue of 
survivors. 

As a result of the experiences of the two world wars, including the 
subsequent trial of Admiral Doenitz, the post- World War II law of submarine 
warfare against merchant ships might be summarized as follows: 

As a sort of benchmark rule, it can be noted again that submarines, like 
other warships, could attack enemy warships without warning. The successful 
attacker, surface or submarine, was then required to search for and provide 
as best as it could for the safety of survivors, although the practice of the 
belligerents in World War II, especially those of the United States in the 
Pacific, indicates for reasons already noted that submarines might not have 
been held to as stringent a standard for survivor rescue as surface warships. 

Enemy merchant ships that were armed and ordered to fight back or attack 
submarines or that were convoyed under the protection of enemy warships 
or aircraft were arguably not true merchants and thus could be sunk without 
warning and without first providing for the safety of crew and passengers. 
But rescue of survivors was required if rescue was consistent with the safety 
of the submarine and its military mission. 

Unarmed enemy merchant ships not under convoy protection posed a trickier 
targeting situation for submarines. Because the practice of the belligerents 
in World War II was, apparently, consistently to arm or convoy, a post-war 
rule might be lacking because of insufficient evidence upon which to base 
a rule determination. The traditional rule suggests that unprotected enemy 
merchant ships in wartime could be captured by a belligerent warship without 
the necessity of visit and search and escorted to port for adjudication as a 
prize. The warship could probably sink the merchant vessel if the steps 
required for prize adjudication would seriously endanger the warship or 
interfere with its military mission — but only after the safety of the merchant's 
crew and passengers had been provided for. 

Following World War II, the notion of capture of enemy merchant vessels 
for prize adjudication seemed almost quaint and old-fashioned, especially for 
submarine warships. Enemy merchantmen were apparently presumed, 
because of the usual practice, to be armed or protected by enemy warships 
or aircraft and thus almost automatically subject to destruction or 
disablement. And belligerents tended to view, with some justification, all 
enemy merchant ships, whether or not armed or convoyed, as part of the 
enemy's total war effort, supporting at least the war-focused economy of the 
enemy nation. In addition, capture and escort to port was often infeasible, 
or judged infeasible, in the conduct of naval warfare in the world wars, again 
in particular for submarines. It might therefore be said that the law of naval 
warfare then allowed submarines to sink even unarmed and unprotected 
enemy merchant ships without much consideration in many situations for the 
alternative course of capture. The more difficult question concerns the duty, 



Jacobson 215 

if any, to provide for the safety of the civilian crews and any passengers. 
The International Military Tribunal gave strong indication in the Doenitz 
judgment that the London Protocol's rules in this regard must be observed. 
If the submarine commander found himself unable to provide for the safety 
of the persons on board a merchant ship, said the Tribunal, then he "should 
allow it to pass harmless before his periscope." 36 

It should be remembered that the 1936 London Protocol itself sets forth 
two situations authorizing the destruction or incapacitation of a merchant 
vessel (enemy or neutral) without the necessity of first removing passengers 
and crew: "[I]n the case of persistent refusal to stop on being duly summoned, 
or of active resistance to visit or search." 37 The language of the Protocol, 
however, makes it clear that these are narrow exceptions; note the words 
"persistent," "duly," and "active." 

Even if circumstances allowed a submarine commander to sink an enemy 
ship without warning — for example, where it was armed for attack on 
submarines — post-war rules still undoubtedly required that the submarine 
make every feasible effort to rescue survivors. 

The post-war rules regarding neutral merchant vessels engaged in international 
trade and not in any way assisting the enemy war effort made them immune 
from attack by belligerent warships, surface or submarine. Neutral ships 
suspected of carrying contraband or otherwise helping the enemy, however, 
were subject to visit and search by belligerent warships. If the suspicions 
turned out, upon visit and search, to have been well founded, the warship 
could capture the neutral vessel as a prize of war according to traditional 
rules of naval warfare. Again, however, belligerent state practices in the two 
world wars blurred the lines not only between combatants and merchants 
but also between neutrals and enemies, and traditional capture and prize 
procedures fell somewhat out of fashion. 38 As a consequence, it might be said 
that neutral merchant ships, at least where there was evidence, by visit and 
search or otherwise, that they were assisting the enemy's war efforts were 
in general treated like enemy merchant ships. Again, the 1936 Protocol makes 
no distinction between enemy and neutral merchant ships in authorizing the 
destruction or incapacitation of merchant ships in cases of "persistent" refusal 
to stop when "duly" summoned or of "active" resistance to visit or search. 

The most disturbing practice of belligerents in the world wars that affected 
neutral shipping was the declaration of war zones or operational areas within 
which, they warned, even neutral vessels were subject to destruction, without 
visit and search or warning. Remember that the International Military 
Tribunal condemned Admiral Doenitz for ordering this practice but refused 
to impose a sentence specifically for it because of similar practices by other 
belligerents in the Second War. This seeming contradiction has made it 
somewhat difficult to assess the state of the post-war law concerning the 
validity of using war zones as a means of rendering neutral (and enemy) 



216 Law of Naval Operations 

merchant shipping vulnerable to unwarned attack by submarines. 39 If a zone 
was given wide publicity and its size and location would not seriously interfere 
with innocent merchant shipping, would it be consistent with the 
humanitarian aspects of the laws of war to allow submarine commanders to 
presume that merchantmen of any flag found within the zone are legitimate 
targets for attack? 40 The Tribunal's judgment, read carefully, would say no, 
while the practice of the belligerents in World War II would seem to say 
yes. Certainly the efficiency of the submarine as a commerce raider would 
be hampered by the Tribunal's answer, since compliance with the Tribunal's 
strict reading of the 1936 Protocol would require the submarine commander 
to choose between subjecting his boat to considerable risk and allowing a 
possible, but not proved, instrument of the enemy's war effort to escape. Yet, 
when stated this way, the issue seems better resolved by the Tribunal's 
approach. Almost by definition, noncombatants should be entitled to greater 
freedom from risk of harm than are combatants, and the Tribunal's judgment 
seems to affirm this choice. 

Submarines as Weapons Platforms Today 41 

Submarine and submarine-related developments in the 45 years since the 
end of World War II have extended the list of wartime roles for underwater 
weapons systems. The technological evolution has resulted in two principal 
categories of U.S. submarines: attack submarines, the more-or-less direct 
descendant of the world war submarines; and the ballistic missile submarine, 
a creature of the post-war nuclear age. 

Increased submerged speeds, combined with the underwater staying power 
granted by nuclear propulsion, have made the attack submarine (SSN) a 
warship much more capable of operating effectively against enemy fleets. 
Its expanded array of weapons, complemented by long-range targeting 
systems, have added to this capability by allowing the submarine to launch 
sub-horizon or over-the-horizon attacks on surface ships, other submarines, 
and land targets. It can, in fact, send sea-launched cruise missiles (SLCMs), 
with conventional or nuclear warheads, far inland to strike selected targets. 
And their speed, underwater duration, increased diving depth, and silenced 
running have rendered today's submarines less vulnerable than their world 
war counterparts to destruction by enemy warships in spite of advances in 
ASW capabilities. In sum, most of the reasons that the submarines of the world 
wars were relatively ineffective weapons against most targets other than 
merchant ships no longer exist or are disappearing. It should be noted, 
however, that the new relative invulnerability is basically due to better 
abilities to escape and hide underwater. A surfaced submarine is still no match 
for a surface warship — and, for that matter, probably not much of a match 
for an armed merchant ship — because the modern submarine's weapons are 



Jacobson 217 

apparently designed almost exclusively for underwater launching. There is 
indeed no indication that the advances in submarine technology and design 
assume any important combat role for a submarine on the surface. There is 
no suggestion, for example, that the experiences of the two world wars have 
led to submarine designs that add onboard accommodations for crews and 
passengers of targeted merchant ships or deck-mounted weapons that will 
give the submarine an adequate sense of security against attack while it carries 
out survivor rescue operations on the surface. 

The other principal category of U.S. submarines, the ballistic missile 
submarine (SSBN), was of course nonexistent in the world wars. The main 
role of SSBNs is, in reality, a peacetime role: that of deterring nuclear attack 
on the United States or its allies by assuring devastating retaliatory nuclear 
ballistic missile attack. Nuclear powered submarines, roving undersea over 
broad ocean areas, are excellent platforms for this role because it is effectively 
impossible for a potential enemy to detect and destroy them, or enough of 
them, as part of a first strike. The Soviet Union also deploys ballistic missile 
submarines. 

Although this deterrence role can continue from peacetime into wartime, 
a presumable wartime role of a nuclear ballistic missile submarine is actually 
to launch its nuclear-warhead missiles against enemy military targets — 
principally land-based launch sites for the enemy's strategic nuclear 
weapons — and against population centers in the enemy's homeland. While 
the target accuracy of submarine-launched ballistic missiles is improving, it 
probably does not yet match the accuracy of strategic missiles launched from 
land. 

Added together, the basic naval warfare roles of both major categories of 
modern underwater weapons — attack submarines and ballistic missile 
submarines — currently number six, according to a recent study: (1) coast 
defense; (2) attrition attacks on enemy naval forces; (3) commerce warfare; 
(4) projection of power ashore; (5) engagement of enemy fleets; and (6) assured 
destruction (SSBNs). 42 According to the author of the study, the last three 
roles came to fruition only in the 1960s, "after a long period of relative 
equilibrium in submarine technology that lasted well into World War II." 43 
The author also asserts that submarine developments in the near future will 
probably include "a decline in the capacity to wage commerce warfare" but 
increased capabilities against other warships, surface and submarine, and other 
military targets. 44 

In the war most contemplated by U.S. military strategists, one against the 
Soviet Union, the main assignment for U.S. attack submarines, at least in 
the early stages, will probably be to attempt quickly to destroy Soviet ballistic 
missile submarines and also Soviet attack submarines that threaten our own 
SSBNs and other naval forces. 45 If such a war were not terminated early by 
strategic nuclear exchange but were to continue with conventional weapons 



218 Law of Naval Operations 

and possibly tactical or intermediate-range nuclear weapons, other roles for 
U.S attack submarines would be likely to emerge. These would certainly 
include coastal defense, projection of force ashore against military targets, 
and operations against the enemy's surface fleet. 46 The submarine role that 
presented the most troublesome legal issues in the two world wars — that of 
commerce raider — will probably not be nearly as significant in the future, 
at least in the contemplated war with the Soviet Union. 47 For one thing, 
NATO forces will probably be much more dependent on merchant shipping 
than the opposing forces, which suggests the possibility that Soviet attack 
submarines could be assigned a major anti-commerce role in such a protracted 
war. 48 For a complex of other reasons, however, submarines will be much 
less effective as commerce warfare weapons in the foreseeable future. 49 To 
the extent that submarines of either side are given missions to attack merchant 
shipping, the experience of World War II can lead us to expect that 
merchantmen targets will be armed and convoyed and otherwise protected 
by highly sophisticated ASW technology and techniques, including aircraft 
and attack submarines of the protecting forces. 

As the 1982 United Kingdom- Argentina war for the Falklands has 
demonstrated, exclusion zones or war zones are a likely part of any future 
war, perhaps especially a limited war. 50 The prominent practice by the world 
war belligerents of declaring war zones suggests that these will also be a 
component of any future global war — at least a protracted world-wide war 
fought with conventional weapons. Although the purposes of declaring such 
zones in wartime can be several, an apparently intended effect of the zones 
for the warships, including submarines, of the declaring belligerent party is 
to shift or ease the burden of proof under the rules of engagement. In the 
absence of the zone, or outside it, the warship commander bears the heavy 
burden of establishing the legitimacy of his contemplated target, while the 
terms of the zone declaration usually purport to allow him to more readily 
presume targetability. As already noted, the Nuremberg Tribunal refused to 
condone the practice of declaring a war zone insofar as its effect was to relieve 
the burden of complying with the laws of naval warfare protecting neutral 
shipping. The Falklands War showed, however, that a war zone may also 
have as its purpose, or one of its purposes, the shifting of the burden of 
identifying a proper target and showing imminently hostile intent of another 
state's warship or aircraft. 51 Thus the controversial sinking of the Argentine 
cruiser, the General Belgrano, by a U.K. submarine outside the British-declared 
exclusion zone 52 was not necessarily illegal, though the submarine 
commander's burden of showing hostile intent was the normally heavy one. 
Whether the declaration of a war zone is a lawful means of shifting the burden 
remains an open question. Still, it can be assumed that future belligerents will 
engage in the zone-declaring practice and that the terms of the zones will 
affect the engagement decisions of their submarine commanders. 



Jacobson 219 
The Current State of the Law of Submarine Warfare 

It has been said that the laws of warfare attempt to achieve proper balance 
between military necessity and humanity. 53 This approach generally translates 
into, inter alia, rules designed to protect noncombatants — civilians, prisoners 
of war, survivors of attacks on ships, and so on — and restrictions against 
excessive force and inhumane weapons. Difficult legal questions surround 
decisions on whether or to what extent it is permissible to inflict civilian 
casualties in attacks on military targets. It is perhaps ironic that the humanity 
side of the military necessity /humanity formula was considerably degraded 
in the very war that gave rise to the still-current and widespread declaration 
of support for individual human rights and freedoms. 54 In World War II, 
civilian populations in enemy cities became legitimate targets for aerial 
bombardment, at least in reprisal or as "incidental" casualties of targeting 
military installations. And, as we have seen, noncombatant crews and 
passengers of merchant ships, even neutral ships, became acceptable victims 
of submarines' torpedoes. The habit of justifying the killing and maiming of 
civilians in wartime, for example, by reason of the circumstance that they 
happened to be in the vicinity of almost any military target has, to some 
extent, continued from World War II to present times, even in limited wars 
where the objective is not national survival. The idea that entire societies 
participate in the militaristic schemes of their political and military leaders, 
another Second World War notion, has also undoubtedly made it possible 
for today's military planners to contemplate the intended destruction of an 
enemy's population centers. To some, apparently, almost any characterization 
of military necessity rationalizes the disregard or discounting of any humanity 
considerations. This is an unfortunate twentieth-century trend. It is 
understandable that military commanders will in general prefer a broader 
rather than narrower range of legitimacy for their actions and the easing of 
the tremendous burden that often comes with engagement decisions where 
humanitarian and military considerations intermingle. Decision dilemmas are, 
however, the essence of command, and military officers necessarily bear the 
brunt of these terrible dilemmas of their national governments. 

The government of the United States has, especially in the years since the 
Second World War, consistently placed itself in the forefront of those 
governments promoting humanitarian values and the rights and freedoms of 
individuals everywhere. Most governments of the international community 
subscribe to these values (by words if somewhat haphazardly by deeds), 55 and 
these are essentially the same values that account for the humanity side of 
the laws of war formulations. Can it be said, therefore, that the international 
community, led by the U.S and others, has implicitly indicated that 
humanitarian factors are now entitled to renewed weight in the military 
decision process despite the degradation of these factors in the world wars? 



220 Law of Naval Operations 

Or have the modern warfighting conditions and perceptions that developed 
during those wars continued to affect military decisions that might put 
civilians at risk? 

These are questions that raise important matters, the full analysis of which 
is beyond the scope of this chapter but which are nevertheless central to the 
discussion of at least some of the issues in this part of the chapter: the present 
state of the law of submarine warfare. All belligerents in World War II 
justified in some manner surprise submarine attacks on merchant ships without 
the necessity of providing for the safety of crews and passengers who were 
not formally part of the armed forces of an enemy. To what extent these 
practices are justified under current law will be one of the questions discussed 
in the following paragraphs. Other issues will include the legality of 
submarines as such, other targets of submarines and their modern weapons, 
the lawfulness of their weaponry itself, and the effects of declaring operational 
areas or exclusion zones. This section will then set forth a brief note on 
submerged navigation under current law. It will also refer, where 
appropriate, to three distinctions that the previous discussions have alluded 
to: between belligerent and neutral vessels; between combatant and merchant 
ships; and between general (but conventionally fought) wars and limited wars. 

Are submarines legal? This question, one that concerned delegations to 
conferences on the laws of war earlier in the century, can now be answered. 
Like other warships, submarines are legal weapons but, like other warships, 
are subject to some restrictions. 56 The best evidence for their legality is the 
Nuremberg Tribunal's judgment in the case of Admiral Doenitz where the 
Tribunal necessarily assumed the basic legality of submarines, while 
condemning certain uses of them in wartime. 57 

Targeting other warships. As a basic proposition, enemy warships found 
outside neutral waters are legitimate targets for a belligerent warship, 
including a submarine, and can lawfully be attacked by the latter without 
either warning or precautions for the safety of the combatant crew members. 58 
It is not among the purposes of this chapter to examine the problems for this 
rule caused by the practice in recent decades of entering into hostilities 
without formal declarations of war, declarations that formerly assisted 
considerably the process of deciding who is the "enemy." Once that decision 
has been made, by whatever process, "warships" ought to mean those clearly 
designated as such by their weaponry, their operation by uniformed members 
of an enemy's armed forces, and their required markings. 

The conduct of warfare in the post- World War II years, however, has 
called into question even the basic proposition, thus defined. There has not 
been a global war, with national survival as an objective, since the Second 
World War. Limited war has been the recent warfighting experience. This 
has usually meant limited in objective or geographical scope or both. 59 For 
example, the belligerents in the war for the Falklands expressly and implicitly 



Jacobson 221 

limited both the objectives and the geographical scope of their conflict. Each 
state seemed to concede that an attack on one of the other's warships outside 
the zone of conflict was not permissible in the absence of factors giving rise 
to the right of self defense, such as an initial attack or other indication of 
imminent hostile intent on the part of the enemy's warship. Moreover, the 
negative international community reaction to the sinking of the General 
Belgrano, an Argentine warship, outside the United Kingdom's self-declared 
exclusion zone seemingly supported this legal effect of limiting hostilities. 60 
This reaction can probably be attributed in part not only to the geographical 
limitation inherent in the nature of the war, as well as in the U.K.'s 
declaration, but in the perception of disproportion between the U.K.'s 
military objective — the retaking of the islands — and the loss to Argentina — 
368 lives. 61 It is also possible that the negative reaction is attributable in part 
to the fact that the Belgrano was sunk in a stealthy surprise attack by a 
submarine rather than in open combat with a U.K. surface ship. 

The practices of belligerent states in the limited wars of this half-century 
provide indications, therefore, that enemy warships are not always and 
everywhere lawful targets for a belligerent's surface warships or its 
submarines. Formulators of rules of engagement for limited hostilities should 
give consideration to restrictions arising from geographical scope and 
proportionality to the military objective or objectives. The practices of 
belligerents in a war fought on a global scale and with national survival among 
the objectives are not necessarily appropriate precedents for the laws of naval 
warfare in a limited war. 

Only in such a global war, therefore, might it be said without qualification 
that enemy warships in non-neutral waters are open, unrestricted targets for 
submarines (or other belligerent warships). But where circumstances allow 
submarine attack on an enemy warship, the submarine commander can pursue 
his attack without warning and without first providing for the safety of the 
target's crew. For example, shortly after the commencement of a war 
between the United States and the Soviet Union (something fortunately not 
likely at the present stage of U.S.-U.S.S.R. relations and, it is hoped, 
something that will never occur), American submarines will be able lawfully 
to carry out their presumed ASW and anti-surface-fleet roles through surprise 
attacks. 

But what of survivors of submarine attacks on enemy warships? The 
implication (somewhat confused) of the judgment of the International 
Military Tribunal in the Doenitz case would require submarine commanders 
to make substantial efforts to search for and rescue the survivors of the ships 
they have sunk, at least if such efforts would not expose rescuing submariners 
to undue danger. Even in World War II it was risky and often impracticable 
for submarines (as contrasted to larger and more heavily armed surface ships) 
to effect rescue of survivors, although evidence presented to the Tribunal 



222 Law of Naval Operations 

indicated that some efforts were made. Presumably, over-the-horizon 
targeting today makes it both less practicable and more dangerous for 
submarines to attempt to rescue survivors of their attacks: the sinking is more 
likely to occur at some distance from the position of the attacking submarine 
and the surfaced submarine engaged in rescue would itself be vulnerable to 
surprise (even if unlawful) attack. Another consideration should be an 
assessment of the enemy's capabilities to effect rescue of its own people. 

The best that can be said for the current rule on the obligation to rescue 
survivors is that such an obligation still exists, with new circumstances 
qualifying — and, especially in the case of submarines, probably effectively 
reducing — the extent of the duty. In situations where it is feasible and not 
unreasonably dangerous to rescue, either by taking survivors on board the 
submarine or other vessel or by supplying them with life rafts and provisions 
(in accordance with U.S. precedent in the Pacific in World War II), the 
current law of submarine warfare probably requires that these steps be taken. 

Targeting merchant ships. This, of course, presented the major legal issue 
concerning the use of submarines in the two world wars. As stated above, 
the law of submarine warfare after the Second World War remained based 
on the London Protocol of 1936, but with some practical qualifications 
attributable to nontraditional practices of the belligerents in their conduct 
of that war. These practices, it will be recalled, resulted in the blurring of 
distinctions between merchant ships and warships, between neutral merchant 
ships and enemy merchant ships, and, in general, between combatants and 
noncombatants. It must be noted, though, that these practices were in large 
measure a consequence of the correct perception by each belligerent state 
that it was engaged in a global-scale war and fighting for its national survival. 
Thus all segments of a belligerent's society were in some manner engaged 
in the fighting, including its merchant fleet and, where it could enlist or 
intimidate them, the merchant fleets of technically neutral states. While we 
can expect the same to be true for the belligerents in any future general war 
of similar or greater magnitude, it will not necessarily be true for the wars 
of lesser scale that have constituted the belligerency experiences since the 
Second World War. 

What, then, can be said for the current state of the law of submarine 
warfare regarding the targeting of merchant vessels? In general, submarines 
are undoubtedly subject to the same rules as surface warships in this regard. 
The practices of World War II suggest that in a war on a global scale with 
national survival of the belligerents at stake, it is permissible for belligerent 
warships to capture or, where capture is not feasible, to sink enemy merchant 
vessels on the assumption, in such a war, that these vessels are part of the 
enemy's warfighting efforts. This is probably the rule for general war today 
(assuming it would proceed for a time without resort to strategic nuclear 
weapons). It is by no means clear, however, that this is the rule for today's 



Jacobson 223 

popular limited wars. Outside the area of any legitimate blockade or legal 
exclusion area, visit and search should be the rule for unarmed and 
unconvoyed enemy merchant ships. If visit and search discloses that an enemy 
merchant vessel is then and there supporting the enemy's conduct of the 
limited war, it is subject to capture or, where appropriate, sinking or 
incapacitation. As a basic proposition, a neutral merchant ship must, according 
to the International Military Tribunal, be visited and searched to determine 
its susceptibility to capture or sinking even in a general war and even in a 
declared war zone. This should certainly be the rule for neutral shipping in 
a limited war. (Whether the declaration of an exclusion zone or other war 
zone affects the operation of this rule is an issue addressed below.) 

In any case, because of the risk that perceived mistreatment of neutral 
vessels might lead neutral states to enter the conflict on the other side, 
belligerents can probably be expected to treat neutrals with better regard 
than that accorded to enemy merchant ships. 

The status of merchant crews and passengers is of course the critical 
consideration. It should be recalled that the London Protocol of 1936 is 
technically still in force for nearly 50 States, including the United States and 
the Soviet Union. These States are thus arguably bound by the terms of the 
Protocol to provide for the safety of the crew and any passengers of a merchant 
ship (enemy or neutral) prior to its destruction or incapacitation unless the 
merchant either persistently refuses to stop after being duly summoned or 
actively resists visit or search. Both the Doenitz judgment and the practices 
of belligerents in World War II, however, stand for the proposition that the 
enemy's armed or convoyed merchant ships are lawful targets of surprise 
submarine attacks without the necessity of visit and search or provision for 
the safety of the crew and passengers. This is probably still the case under 
the current law of submarine warfare, at least in a general (but conventional) 
war, because such merchantmen are effectively part of the enemy's 
warfighting force. In a limited war with limited objectives, on the other hand, 
humanitarian principles and proportionality should require a determination 
by the submarine commander that even an armed or convoyed merchant ship 
found outside the war's geographical area is, then and there, actively and 
significantly a part of the enemy's pursuit of that war as a prerequisite to 
the merchant's destruction without warning. 

Publicists who have previously analyzed the rules of submarine warfare 
have frequently noted the "unreality" of a requirement that submarines, as 
contrasted to surface warships, provide for the safety of merchant ship crews 
and passengers under virtually any circumstances. 62 There is no question but 
that submarines, even today's relatively larger ones, have little space for 
taking these people on board and remain vulnerable while on the surface in 
an attempt to comply with the obligation. To this suggestion that submarines 
should therefore be exempt from the rule, the International Military Tribunal 



224 Law of Naval Operations 

provided a response in the Doenitz judgment: Comply or allow the merchant 
vessel to pass unharmed. The humanitarian principles that prompted this 
response should be no less applicable today, particularly in the case of a limited 
war. 

The comparatively restricted capability of submarines for protecting the 
crews and passengers of merchant ship targets also affects their responsibility 
to search for and rescue the survivors of their attacks on merchant ships. 
Nevertheless, the duty to rescue survivors, one of the clearest obligations in 
the rules of naval warfare, undoubtedly applies to an even greater degree 
for merchant ship survivors, and submarine commanders should be expected 
to do everything in their power to comply with this responsibility. 

Any submarine commander reading the above complex of rules, 
qualifications and exceptions will probably raise a legitimate and crucial 
question. He might well ask what he should or can do in case of doubt. What 
if, for example, he cannot determine whether an enemy merchant ship is 
armed or not? How can he tell whether a convoyed merchant ship is actively 
and significantly contributing to the enemy's conduct of the limited war 
between the belligerents, and what does he do if he suspects it is but cannot 
know for sure? It is common for law to provide presumptions for doubtful 
cases. In this case, especially for commanders of the United States military, 
the presumption should be clear. Any state that strongly defends and promotes 
humanitarian values, as does the U.S., should nearly always erase such doubts 
in favor of the humanity side of the military necessity/humanity formula for 
laws of war. The apparent fact that the presumption often went the other 
way, even for the U.S., in the last world war does not necessarily mean that 
it should do likewise in a future limited war or, for that matter, a conventional 
general war. (Besides, a rule giving broad protection for merchant ships 
against unwarned submarine attack is in the greater interest of the United 
States in a future war with the Soviet Union since, as already noted, the 
potential merchant targets will most often be assisting NATO forces.) Where 
belligerents perceive that their national survival is at stake, however, their 
practices will undoubtedly vary from the letter of many rules of warfare, 
including those under consideration. 

The question concerning presumptions in cases of doubt raises another issue 
related to the targetability of merchant ships, especially neutral ships, and 
the responsibility for the safety of their crews and passengers. This issue is 
the validity of self-declared war zones or exclusion zones, a topic that will 
now be addressed prior to proceeding to consideration of other potential 
targets of submarine weapons. 

Exclusion zones. Despite the International Military Tribunal's 
condemnation of Admiral Doenitz 's declaration of unrestricted submarine 
warfare in operational areas or war zones, it seems clear that such zones were 
in World War II and continue to be established components of warfighting 



Jacobson 225 

practices at sea. One analyst has proposed revisions of the 1936 London 
Protocol that would include the following provision on exclusion zones: 

Within clearly announced and defined war zones, limited by a line extending 200 miles 
outside the coastline of a belligerent state, 200 miles outside the coastline of an area 
where land hostilities are in progress, or 200 miles outside the coastline of any territory 
occupied by a belligerent state, all vessels, belligerent or neutral, excepting marked 
hospital ships and coastal fishing vessels, are subject to sinking upon sight. 

... If a declared war zone blocks ingress to and egress from neutral territory, the 
belligerent declaring the zone must, upon request, provide a means of safe passage 
through the war zone for neutral vessels calling at and leaving the blocked neutral 
territory. 63 

While it is true that an effect of declaring such a war zone or exclusion zone 
might very well be to warn neutral shipping away from dangerous sea areas, 
this is certainly not the principal reason for the zone. A clear purpose of such 
a zone, perhaps its main purpose, is to relieve the burden on warship 
commanders in a hot war area to take the difficult and often dangerous steps 
otherwise required to determine the legitimacy of firing on vessels of doubtful 
status. 64 The current popularity of exclusion zones is evidenced by their use 
by both sides in the Iran-Iraq war in the Persian Gulf 65 and by the United 
Kingdom in the 1982 war for the Falkland Islands. The U.K.'s use of exclusion 
zones in the latter war is especially relevant to the present discussion because 
it may be the only limited war since World War II in which the submarine 
has played a significant role. 66 However, in that case, the declaration of an 
exclusion zone in at least one respect operated against the interests of the 
declaring belligerent state by giving the impression (falsely) that no attacks 
would be carried out by the British outside the zone, thereby contributing 
to the negative reaction to the torpedoing of the General Belgrano just beyond 
the zone's outer limits. 

Nevertheless, exclusion zones are indeed popular and, moreover, are 
apparently part of U.S. naval war plans. 67 If they are legal, they are especially 
valuable for submarine commanders, who have the greatest difficulty in 
determining targetability without sacrificing their advantage of stealth and 
subjecting themselves to the dangers of the sea's surface. Are exclusion zones 
legal? This unfortunately remains an unanswered question. Their popularity 
suggests that precedent is building in their favor. Yet it should be recalled 
that one of the principal purposes of declaring an exclusion zone is, in law 
of war terms, to shift the presumption in favor of military necessity and away 
from humanitarian considerations — at least to the extent that shifting the 
presumption in doubtful cases more often places civilian crews and passengers 
at risk of death and injury in exchange for lessening the risk to warship crews. 
No state that places real value in the recognition of humanitarian principles 
should lightly promote or easily accept a significant shift in this direction. 



226 Law of Naval Operations 

Exclusion zones, if they continue to be used by belligerents, should either 
be limited (usually in limited war situations) in placement and scale so as not 
greatly to inconvenience genuinely neutral shipping or include reasonable 
provision for safe passage for neutral vessels. As the war in the Persian Gulf 
clearly demonstrated, it is not in the interest of the United States or other 
seafaring nations to tolerate the use by belligerents of exclusion zones or other 
practices that unduly interfere with freedom of the seas for neutral traffic 
or to abide the seriously heightened risk of harm to noncombatants that can 
accompany the enforcement of these claimed war zones. 

Other targets of submarines. There is no suggestion in current trends that 
hospital ships, clearly marked as such and not otherwise in violation of the 
relevant rules for hospital status, have lost any of their traditional immunity 
from attack by belligerent warships, including submarines. 68 Coastal fishing 
vessels that are unarmed and not otherwise assisting an enemy's war effort 
are probably still similarly immune. 69 

As noted above, the expanded roles for today's more capable and versatile 
submarine weapons systems include attacks against objectives on land. In 
general, the lawfulness of strikes against land targets is the same whether 
the attacks are launched from surface warships, land-based weapons systems, 
aircraft, or submarines. Consequently, the legality of projection of force 
ashore by submarines will not be discussed in detail in the present chapter. 
If the land target is a legitimate one, a submarine bombardment will, in the 
main, be as lawful as any other attack — and, of course, the converse is true. 
Particular weapons in the modern submarine's arsenal and the targeting 
systems employed in their use, however, have been the subject of some 
concern and discussion, often whether the target is at sea or on land. These 
weapons problems are analyzed in the next section. 

Submarine weaponry. The laws of war include rules designed to prohibit 
the employment of weapons in such a manner as to cause excessive suffering 
or disproportionate risk of harm to noncombatants. Thus self-propelled 
torpedoes, the principal weapons of submarines in the two world wars, must 
disarm if they miss their targets, 70 and the rules concerning the laying of 
stationary mines forbid their use in areas or manners that unduly endanger 
commercial shipping. 71 Like other platforms that use these weapons, 
submarines must comply with the laws of war that govern them. 

The legality of the tactical use of sea launched cruise missiles in naval 
warfare, especially those launched from submerged submarines, has been the 
subject of some debate. Challengers to the legality of these weapons have 
emphasized the risks posed to merchant ships, both neutral and protected 
belligerent vessels, by imperfect target identification and acquisition 
systems. 72 As one of those urging the outlawing of submarine launched cruise 
missiles asserted in 1977: 



Jacobson 227 

The primary clanger is that the missiles will fix on a ship other than the intended target. 
The threat is increased when the missile is subjected to electronic countermeasures 
(ECM) and other diversionary tactics employed by the target. A similar increase in threat 
level arises primarily from inherent design shortcomings, which at present are thought 
to be great. 73 

The same writer suggested that underwater launching, using sonar detection, 
would heighten the chance for error. 74 Basically, the argument against the 
legality of the weapon focused on the disproportionality of the risk of harm 
to noncombatants, particularly in crowded sea lanes, compared to the military 
necessity of striking at the intended combatant target. A response to this 
position, also in 1977, contended that the proportionality of the risk to 
noncombatants could be controlled by rules of engagement cautioning against 
the use of submarine launched cruise missiles where the risk was too great. 75 
This is probably an appropriate approach. Moreover, the problem should 
decrease in significance with (presumed) increase in the accuracy and 
dependability of the targeting systems. 

It is beyond the scope of this chapter to discuss the lawfulness of nuclear 
weapons as such, as that topic is the subject of a separate chapter in the present 
volume as well as much intense discussion elsewhere. 76 Ballistic missile 
submarines provide, of course, one important type of launch platform for 
strategic nuclear weapons, and attack submarines are capable of launching 
nuclear strikes against targets at sea or on land. It can be said generally that 
if the use or threatened use of nuclear weapons is illegal, it is illegal for 
submarines to launch them or to threaten to launch them. If, on the other 
hand, they are legal — even though, as in the case of other weapons, their 
use is restricted — then submarines can use them — within the bounds of the 
restrictions. 

Claims of illegality of nuclear weapons rely on the proposition that they 
are either intended for use against noncombatant civilian populations or that 
their awesome destructive power, combined with their radiation effects, 
means that their use, even against military objectives, necessarily entails 
disproportionate harm to noncombatants and excessive human suffering. 
These claims can be met in part by improvements in the accuracy of targeting 
systems that would minimize the risk to civilians where the target is a military 
objective. To the extent that subsea launches of nuclear missiles rely on 
targeting systems that are less accurate than those of air- or land-based 
platforms, the asserted legality problem is a larger one for submarines than 
for other platforms. The indications are that the accuracy of submarine 
systems is improving. If so, the legality issue may be essentially the same for 
all launch systems. Of course, the question of whether it is lawful to target 
civilian population centers as a deterrent measure or actually to launch strikes 
intentionally at these targets in wartime is the same for submarines as it is 
for land or air systems. 



228 Law of Naval Operations 

A Note on Submerged Navigation. On the high seas and within exclusive 
economic zones (EEZs), submerged navigation is a freedom of the high seas. 77 
Although traditional law of the sea rules require submarines to navigate on 
the surface and show their flags as part of their innocent passage 
responsibilities in foreign coastal state territorial seas, 78 the United States takes 
the position that customary law of the sea allows submerged transit through 
straits used for international navigation, such as the Strait of Gibraltar, even 
if these straits are blanketed by up-to-twelve-mile territorial seas. Consistent 
with this position, the U.S. contends that the straits transit passage provisions 
of the 1982 United Nations Convention on the Law of the Sea — a treaty the 
U.S. has so far rejected in no uncertain terms because of its deep seabed mining 
rules — are merely reflections or articulations of custom. 79 Most nations 
probably disagree, asserting that the straits passage provisions of the 1982 
Convention are not reflective of custom but are treaty law exceptions to the 
general rule of surface passage, negotiated by the U.S. in the Third World 
U.N. Conference on the Law of the Sea in exchange for, among other things, 
the deep seabed mining regime that the U.S. now finds unacceptable. 80 And 
because treaties bind and benefit only the parties to them, say these States, 
the U.S. will not have the right of submerged straits transit unless it becomes 
a party to the 1982 treaty. These States have a good case. 

This controversy could be significant for U.S. submarines in wartime. 
While submerged passage or transit through the territorial seas of belligerents 
is no doubt lawful in wartime, submarines will be required to obey the general 
law of the sea restrictions in territorial seas of neutrals. Whatever the true 
state of the law on this subject, it would certainly be wise for the United 
States in any wartime situation, especially a limited war, to take the wishes 
of significant neutral States into consideration and consult with them before 
transiting their territorial seas in submerged modes. 

The concept of "archipelagic waters," recognized as such for the first time 
in the 1982 Convention, 81 presents a somewhat more complex, but at the same 
time less controversial, issue. The treaty in general allows States composed 
completely of archipelagoes (island groups), such as Indonesia and the 
Philippines, to enclose their islands and the waters between them by a series 
of straight baselines, but also provides for these States to establish sea lanes 
through their thus-created archipelagic waters for international traffic, 
including submerged passage by submarines. 82 The United States, though 
rejecting the 1982 treaty, expresses a willingness to recognize the 
establishment of archipelagic waters in accordance with the treaty's rules. 83 
Again, in wartime the issue would arise only with respect to the rights of 
neutral archipelagic States. In fact, current law of the sea, in the absence 
of the 1982 treaty (which is as yet not in force for any State), probably does 
not recognize the concept of archipelagic waters at all and would thus allow 



Jacobson 229 

submerged passage in any high seas areas between the islands of an 
archipelagic State. 

The New Commander's Handbook on 
the Law of Naval Operations 

The new Handbook (NWP 9) 84 appears to be a basically sound, readable 
guide for naval commanders. The discussion of the Handbook in the present 
chapter will be limited to the topics addressed in the preceding section of 
the chapter on the current state of the law of submarine warfare and will 
be treated in the same order. The purpose of the discussion is, of course, to 
assess the handbook's consistency or lack of consistency with the suggested 
current state of the law. 

Are submarines legal? The Handbook does not mention this question and 
properly so. It is today a non-issue. Submarines as such are now clearly lawful 
weapons of war and the Handbook, by the implication of its omission, 
recognizes this conclusion. 

Targeting other warships. The Handbook states that '[ejnemy 
warships . . . , including naval and military auxiliaries, are subject to attack, 
destruction, or capture anywhere beyond neutral territory." 85 It goes on to 
state that "[submarines may employ their conventional weapons systems to 
attack, capture, or destroy enemy surface targets wherever located beyond 
neutral territory, " and that "[ejnemy warships and naval auxiliaries may be 
attacked and destroyed without warning. " 86 It was suggested above, however, 
that the allowance reflected in the latter quotation, if taken literally, might 
not be consistent with the present law of limited war. Even enemy warships, 
if not directly supporting the enemy's fighting of a limited war and if found 
outside the area of hot water, especially a war with limited objectives, might 
not be lawful objects of unrestricted attack in the absence of grounds for self 
defense. Certainly, the rule stated in the Handbook is appropriate for the global 
wars of this century, but not all of those rules would necessarily be appropriate 
or applicable to wars limited in geographical scope and in objectives falling 
short of a fight for national survival. It is by no means clear, for example, 
that the international community would have viewed it as lawful for an 
Argentine submarine to have attacked without direct provocation a British 
warship on a routine mission thousands of miles from the Falklands during 
the course of the limited war over possession of those islands. Perceptions 
of military necessity and proportionality in limited war may demand restraints 
on the use of force not called for in a world war. 

The Handbook clearly states the obligation of our naval forces to search 
for and rescue the survivors of their attacks on enemy warships, in accordance 
with U.S. duties under the 1949 Geneva Convention (II) for the Amelioration 
of the Condition of Wounded, Sick, and Shipwrecked Members of Armed 



230 Law of Naval Operations 

Forces at Sea. 87 This obligation is to be carried out "consistent with the 
security of their forces," 88 a phrase that could be interpreted to have special 
meaning for submarine commanders, since their boats are particularly 
vulnerable while attempting to effect rescue on the surface. Consistent with 
this suggestion, the Handbook proposes the following qualification of the 
obligation for submarines: 

To the extent that military exigencies permit, submarines are also required to search 
for and collect the shipwrecked, wounded, and sick following an engagement. If such 
humanitarian efforts would subject the submarine to undue additional hazard or prevent 
it from accomplishing its military mission, the location of possible survivors should be 
passed at the first opportunity to a surface ship, aircraft, or shore facility capable of 
rendering assistance. 89 

The only troublesome aspect of this interpretation is its lack of a direction 
to assess the proportionality of the importance of the "military exigency" 
or the "military mission" that will, according to the statement, authorize 
the departure from the general humanitarian rule of rescue. Clearly, not all 
military missions are so necessary or imperative that they cannot be eliminated 
or postponed in order to carry out the important humanitarian duty to rescue 
survivors. It would be better if the Handbook tied its special regard for 
submarines more closely to the safety of the submarine and its crew under 
the circumstances rather than the continuance of its military mission. 

Of course, the Handbook strongly admonishes commanders against the 
killing, wounding or mistreating of survivors and the shipwrecked, treating 
them as noncombatants, 90 and in fact correctly reminds its readers that these 
are major war crimes. 91 

Targeting merchant vessels. This has been the principal issue in the law 
of submarine warfare. Whether it is today a major issue, in light of the 
expanded wartime roles for U.S. submarines, is in question. By most 
assessments, it will remain a significant issue for Soviet submarines. 92 

In general, the authors of the Commander's Handbook have done an excellent 
job of restating the complex and often confusing state of the law on this 
difficult topic. Contrary to the view of some publicists, but consistent with 
the approach of this chapter, the Handbook considers the 1936 London Protocol 
as continuing to bind the parties to it, including the U.S., but suggests that 
the conduct of the Second World War (and unspecified practices following 
that war) have led to some modifications of the Protocol in its application 
to submarine warfare today. 

According to the Handbook, "[t]he conventional rules of naval warfare 
pertaining to submarine operations against enemy merchant shipping 
constitute one of the least developed areas of the law of armed conflict." 93 
Unfortunately, the Handbook itself contributes a bit of confusion to this already 
perplexing subject. In addressing the issue of targeting enemy merchant ships, 
it purports to excuse submarines from the constraints imposed on belligerent 



Jacobson 231 

surface warships because of "impracticality," 94 but does not make clear what 
exactly are the constraints that submarines are excused from. By comparing 
the book's designated section on submarine warfare with other provisions on 
surface warfare, one is led to assume that submarines are not required to make 
the efforts required of surface warships to determine enemy character or to 
capture enemy merchantmen as prizes, but this assumption is by no means 
obvious. The modifications to the London Protocol that the Handbook discovers 
in the "customary practice of belligerents during and following World War 
II" seem to be just about the same for surface warships as for submarines. 95 
For submarines, the book states that the general rule, based on the Protocol, 
imposes on submarines the duty to provide for the safety of an enemy merchant 
ship's passengers, crew and papers prior to destruction. The Protocol and the 
asserted subsequent practice, however, are said to provide four exceptions 
to this general rule. 

The first exception occurs where the enemy merchant ship "refuses to stop 
when summoned to do so or otherwise resists capture." 96 The Protocol itself 
would require for its similar exception "persistent refusal to stop upon being 
duly summoned" or "active resistance to visit or search." 97 It is unclear why 
the authors of the Handbook would omit the emphasized qualifiers, except 
perhaps in the interest of saving space. The modifying adjectives and adverb, 
though themselves not capable of precise definition, are important for their 
communication of the narrowness of the exception and should not be omitted. 
As it stands, the Handbook's statement of the exception seems to authorize 
destruction of a merchant ship without providing for the safety of its crew 
and passengers in circumstances, not unlikely to occur in wartime, where an 
initial warning, perhaps a confusing unorthodox order, from a submarine is 
met at first by an instinctive, half-hearted resistance. There appears to be 
no reason in post-1936 practice to lessen the stringency of this exception to 
the general rule of saving the civilian crews and passengers. 

The second exception to this general rule set forth by the Handbook occurs 
when an enemy merchant ship "is sailing under armed convoy or is itself 
armed." 98 The practice of the World War II belligerents and the International 
Military Tribunal's judgment in the Doenitz case do indicate that this is indeed 
now an exception to the Protocol's general rule regarding the safety of 
passengers and crew and would further allow surprise attack on enemy 
merchant vessels so convoyed or armed — at least in a general war. Limited 
warfare may require limitations of location and proportionality in favor of 
the humanitarian principles supporting the general rule. It should be noted 
again that, even where it applies, this "exception" is not necessarily a real 
exception. It could just as well be a legitimate interpretation of the literal 
words of the London Protocol: an enemy merchant ship armed or convoyed 
against submarines might be considered for this context an enemy warship 
and no longer a "merchant ship" protected by the terms of the Protocol. 



232 Law of Naval Operations 

The Handbook's third exception to the Protocol's general rule occurs when 
the enemy merchant ship "is assisting in any way the enemy's military 
intelligence system or is acting in any capacity as a naval auxiliary to the 
enemy's armed forces." 99 At first glance, this exception might appear to be 
simply a corollary of or variation on the second exception regarding armed 
or convoyed enemy merchantmen. But there is, or can often be, an important 
distinction between the two. A merchant ship armed against submarines is 
not only part of the enemy's fighting force but actively intends to fight 
submarines and, because of the submarine's vulnerability on the surface, is 
capable of successfully doing so. Such a merchantman is purposely prepared 
to prevent the submarine from carrying out the responsibilities that the 
Protocol otherwise requires. On the other hand, an enemy merchant ship that 
is "in any way" assisting the enemy's intelligence (as contrasted to, for 
example, calling in an air or over-the-horizon attack on the submarine) does 
not necessarily pose a threat of imminent harm to a surfaced submarine. The 
important humanitarian concerns reflected in the Protocol should not be 
sacrificed in order to avoid minor risks to the submarine, even if it can be 
established that the merchant is or has been providing intelligence in some 
manner not immediately threatening the safety of the submarine. And, again, 
this should be especially true in a limited war with limited objectives, in which 
proportionality considerations should allow greater relative weight for the 
humanity side of the balance between military necessity and humanity. 

Finally, the Handbook would allow deviation from the Protocol's general 
rule where 

[t]he enemy has integrated its merchant shipping into its war-fighting/war-sustaining 
effort and compliance with this rule would, under the circumstances of the specific 
encounter, subject the submarine to imminent danger or would otherwise preclude 
mission accomplishment. 100 

There is much to be said for the proposition that the practices of World War 
II belligerents provide substantial precedent for this exception, particularly 
for any future general war, the sort of war in which a belligerent does 
integrate all assets within its control into its war efforts. In this sense, the 
rule exception implicitly recognizes a pertinent and valuable distinction 
between general war and limited war. Again, however, the last clause 
concerning preclusion of mission should perhaps be modified by requiring a 
proportionality consideration. 

Despite the World War II claims threatening unwarned attacks on neutral 
shipping in broad war zones, the Handbook's rules are generally protective 
of neutral merchant ships. Neutrals that have not taken on enemy character — 
in which case they are to be treated either as enemy warships or enemy 
merchant ships, depending on the nature of their support for the enemy — 101 
can be captured as prizes, but only after visit and search to establish their 
susceptibility to capture. Moreover, captured neutral vessels can be sunk only 



Jacobson 233 

after every reasonable effort has been made to avoid their destruction and 
only after the capturing officer is "entirely satisfied that the prize can neither 
be sent into a belligerent port . . . nor, in his opinion, properly released." 102 
In any case where destruction of a neutral ship is ordered, the capturing officer 
must provide for the safety of the ship's passengers and crew. 103 The Handbook's 
discussion of treatment of neutral ships makes no distinction between the 
obligations owed by surface warships and those owed by submarines. It could 
be said, therefore, that in some respects the Handbook provides more protection 
for neutral shipping — in a general war, at any rate — than the current law 
of submarine warfare provides. 

The Handbook's statement of the law of naval warfare on the rescue of 
survivors of attack, discussed above, applies equally to survivors of attacks 
on merchant ships and attacks on enemy warships. Although a reasonable 
argument can be made for requiring even greater efforts .in the case of 
merchant ship survivors, this is probably an accurate statement of the current 
rule. 

Exclusion zones. As noted, the lawfulness of unilaterally declared war 
zones or exclusion zones or areas of operation is debatable. Such zones were 
used in both world wars in part to claim justification for surprise submarine 
attacks on merchant shipping, including neutral shipping, found within the 
zones. The Nuremberg Tribunal clearly ruled that such zones did not provide 
the right of a belligerent, even in the all-out war with which it was concerned, 
to wage unrestricted submarine warfare against neutral merchant ships. 
Perhaps in partial consequence, the Handbook takes a careful approach to the 
subject. In its discussion of the law of blockade, the Handbook notes attempts 
by belligerents in both world wars to assert "so-called long-distance 
blockades" that were not in conformity with the law of naval warfare 
allowing close-in blockade but which were justified, says the Handbook, upon 
the right of reprisal. Whatever the asserted justification (and, as pointed out 
above, reprisal was not the only one), these "blockades" supposedly often 
authorized unannounced submarine attacks on neutral shipping in the declared 
areas. While the Handbook correctly describes the difficulty, especially in 
current times and in a general war, to impose an effective close-in blockade, 
it nevertheless does not endorse the legitimacy of the extended blockades of 
the world wars. 104 

Yet the Handbook does assert the validity of zones or operational areas 
'[w]ithin the immediate area or vicinity of naval operations" where a 
belligerent may impose "special restrictions" on neutral traffic, including 
prohibition from entering the areas. 105 The belligerent cannot, however, 
"purport to deny access to neutral nations, or to close an international strait 
to neutral shipping, pursuant to this authority unless another route of similar 
convenience remains open to neutral traffic." 106 Although the Handbook rules 
state that a neutral merchant ship is liable to capture for, among other 



234 Law of Naval Operations 

activities, violating the regulations established by the belligerent for such a 
zone, it is, apparently, not liable to sinking without warning unless it fails 
to conform to the belligerent's instructions concerning communications, in 
which case it "may thereby assume enemy character and risk being fired upon 
or captured." 107 It is by no means clear that these asserted rules, though 
admirable in their restraint, are consistent with the current law of naval 
warfare. To the extent that such areas of operation would ever purport to 
authorize the sinking of neutral merchant ships without warning, they would 
run up against the judgment of the International Military Tribunal in the 
Doenitz case. 

Because we can expect that exclusion zones or zones of operation will 
continue to be asserted, in particular in limited wars, perhaps it would be 
worth the effort to attempt to provide by treaty a set of negotiated rules 
that balance the perceived needs for protection of belligerent forces in the 
modern age of long-distance targeting, the interests of neutral shipping, and 
the humanitarian principles that led the Nuremberg Tribunal to condemn 
unrestricted naval warfare zones. 

Other targets of submarines. The Handbook's rules on enemy vessels that 
are immune or exempt from targeting are the same for surface warships and 
submarines and therefore receive no detailed discussion here. The Handbook 
does make it clear that enemy hospital ships complying with the appropriate 
rules on marking and behavior are not lawful targets for surface warships 
or submarines. Other enemy vessels immune from attack, according to the 
Handbook, include coastal fishing vessels and small coastal traders. Civilian 
passenger vessels are said to be subject to capture but exempt from 
destruction. 108 

The Handbook's treatment of the law of conventional-weapon naval 
bombardment of land targets again makes no distinction between surface ships 
and submarines (or, for that matter, aircraft). 109 In general, the stated rules 
set forth the particular prohibitions on targeting civilian populations, 
inflicting unnecessary suffering, and wanton destruction of property. There 
is no suggestion that these rules present special issues for submarines. 

Submarine weaponry. The Handbook also makes no distinction between 
surface ships and submarines in discussing the law of mine-laying. It basically 
sets forth the rules derived from the Hague Convention (VIII) of 1907, n0 to 
which the U.S. remains a party. In order to comply with the rule that 
torpedoes disarm after missing their intended targets, the Handbook states that 
"[a]ll U.S. Navy torpedoes are designed to sink to the bottom and become 
harmless upon completion of their propulsion run." 111 It would seem that the 
duration of the propulsion runs of the array of modern torpedo weapons would 
be an important consideration for promulgating rules of engagement for 
submarines. 



Jacobson 235 

The Handbook contains only one sentence that might be deemed a specific 
response to the above-noted debate on the lawfulness of submarine-launched 
cruise missiles. It states in full: 

Missiles and projectiles dependent upon over-the-horizon or beyond-visual-range 
guidance systems are lawful, provided they are equipped with sensors, or are employed 
in conjunction with external sources of targeting data, that are sufficient to ensure 
effective target discrimination. 112 

This sentence, however, purports to be an extension of the general obligation 
of belligerents, recognized in the Handbook, to avoid weapons that are 
indiscriminate in their effect. But a weapon is not indiscriminate "simply 
because it may cause incidental or collateral civilian casualties, provided such 
casualties are not foreseeably excessive in light of the military advantage 
expected to be gained." 113 This is apparently another reference to the military 
necessity/humanity formula and perhaps deserves a little more explanation, 
including the concept of proportionality and doubt-erasing presumptions. 
Otherwise, the discussion is probably an accurate restatement of the general 
rules on conventional weapons and weapons systems. 

Nuclear weapons present quite another problem, one which the Handbook, 
like the author of this chapter, largely avoids. It does, however, state a 
position, unlike the author. It states that "[t]here are no rules of customary 
or conventional international law prohibiting nations from employing nuclear 
weapons in armed conflict." 114 Thus, the Handbook concludes that the use of 
nuclear weapons "against enemy combatants and other military objectives" 
is legal. But launch of attacks against civilian populations "as such" is not 
lawful. 115 Because United States submarines are among our most important 
launching platforms for nuclear weapons, this issue is one of importance to 
the law of submarine warfare. It is to be expected that a U.S. Navy guidebook 
on the law of naval warfare would take the position that these awesome 
weapons, so significant in the very definition of our defensive forces if not 
our nation itself, are legal weapons of war. But, of course, the question is 
far more complex and confused than the Handbook suggests. 116 The full analysis 
of the question is, however, beyond the scope of the present chapter. 

Submerged passage. On this, another controversial issue, the Handbook 
again takes the expected position: submerged transit through neutral 
territorial seas that form all or part of a strait used for international navigation 
is permitted in accordance with the customary rules articulated in the 1982 
Convention on the Law of the Sea. 117 As noted above, this is not necessarily 
the rule; instead, the general innocent passage requirement that a submarine 
surface and show its flag in neutral territorial seas could well be the current 
law. 

Regarding archipelagic sealanes passage, the Handbook restates the U.S. 
position that it is willing to recognize the right of archipelagic states to 
establish archipelagic waters, provided they do so in accordance with the 



236 Law of Naval Operations 

provisions of the 1982 treaty, which, in the U.S. view, allow submerged 
passage, even in wartime, through designated sea lanes. 118 This position does 
not seem to be inconsistent with international law. 

Conclusion 

Naval command in modern wartime unquestionably carries a terrible 
burden of responsibility — to superior officers, to those commanded, to the 
ship, to the mission, to the nation, and to those innocent persons who somehow 
might come within the broad zones of danger posed by today's weapons 
systems. Many rules guide the commander's decisions as he attempts to cope 
with his tremendous burden. Not all of these rules are called "law," but even 
those that are so designated are recognized because they are in the national 
or military interest or both. The nature of the submarine as a weapons system 
makes the submarine commander's wartime task of attempting to comply with 
the traditional law of naval warfare an especially difficult one. As this chapter 
has tried to explain, the submarine's nature and the experiences of the two 
world wars have led to some modifications of the traditional law, particularly 
regarding the submarine's role as commerce raider. 

The U.S. Navy's new Commander's Handbook on the Law of Naval Operations 
presents an impressive exposition of the law of naval warfare as it relates 
to submarines. It is concise, readable, and, for the most part, an accurate 
reflection of the current law. The few specific comments and criticisms set 
forth in this chapter are not, in light of the overall scope of the book's 
treatment of the topic, highly significant. Two larger matters, however, 
remain bothersome, though they each go beyond the submarine topic. 

First, the Handbook seldom refers to any clear distinction between rules that 
apply in total wars, such as World War II, and today's more likely armed 
confrontation, a war that is limited in geographical scale or objectives or both. 
The distinction is particularly critical for the issues that surround the conduct 
of submarine warfare. Warfighting conduct that might be expected, even 
appropriate (perhaps even lawful), during a global conflagration in which 
warring nations struggle for their very existence does not necessarily provide 
precedent for the conduct of limited war, as recent events probably confirm. 
Some aspects of the traditional laws of naval warfare that seemed so outmoded 
or obsolete in the context of World War II — for example, the provisions 
of the 1936 London Protocol — might make sense again in the context of 
limited war. 

The second problem is one that naval commanders, including especially 
submarine commanders, must anticipate: what to do in cases of doubtful 
targetability. Where the hard choice is between military necessity and 
humanity, which side wins? Where lies the presumed answer? The rules that 
attempt to balance military necessity and humanity are many and complex. 



Jacobson 237 

It is obviously one thing to state them or even know them in all their 
exception- and qualification-festooned glory; it is undoubtedly quite another 
actually to attempt to apply them in instant decision under the stress of 
imminent hostile engagement. As suggested in earlier discussion, anticipation 
of the dilemma calls for a presumption or set of presumptions designed to 
guide decision in doubtful cases, and the Handbook could benefit from the 
inclusion of a section on this problem. 

Notes 

*Professor of Law and Director, Ocean and Coastal Law Center, University of Oregon School of Law. 
The author served as Charles H. Stockton Chair of International Law at the Naval War College during 
1982-83. He would like to express his appreciation to David Baugh, a 1988 graduate of the University 
of Oregon Law School, and to Christine P. Hayes, a second-year student at the University of Oregon 
Law School, for their assistance in the research for this chapter. The author also gratefully acknowledges 
financial support for this assistance from the Sea Grant Program in Oregon, a part of the National Sea 
Grant Program of the National Oceanic and Atmospheric Administration, U.S. Department of Commerce. 
The views expressed in this chapter are, however, solely those of the author. 

1. Karl Lautenschlager, "The Submarine in Naval Warfare, 1901-2001." International Security, Winter 
1986-87 (v. 11, no. 3), pp. 94-140. 

2. Sources for the general historical and technical background contained in this section include Jane s 
Fighting Ships 1987-88 (London: Jane's Publishing Company, Ltd., 1988), pp. 696-718; Norman Friedman, 
Submarine Design and Development (Annapolis: Naval Institute Press, 1984); W.T. Mallison, Jr., "Studies in 
the Law of Naval Warfare: Submarines in General and Limited War," International Law Studies 1966 
(Washington: U.S. Govt. Print. Off., 1968), v. 58; Lautenschlager, supra note 1; Horace B. Robertson, 
Jr., "Submarine Warfare, "JAG Journal, November 1956, pp. 3-9; Jane Gilliland, "Submarines and Targets: 
Suggestions for New Codified Rules of Submarine Warfare," Georgetown Law Journal, v. 73, pp. 975- 
1005 (1985). 

3. See Mallison, supra note 2, pp. 104-05; Gilliland, supra note 2, pp. 976-77. 

4. Mallison, supra note 2, p. 106. 

5. Naval Conference of London, "Declaration (II) Concerning the Law of Naval War," reprinted 
in Dietrich Schindler & Jiri Toman, ed., The Laws of Armed Conflicts: A Collection of Conventions, Resolutions 
and Other Documents, 3rd ed. (Dordrecht, Netherlands: Martinus Nijhoff Publishers, 1988), ch. IV., pp. 
852-53 (hereinafter Schindler & Toman). The Declaration was not ratified by any of the ten signatories, 
but the rules contained in it were recognized by several of the belligerents in World War I. 

6. Mallison, supra note 2, pp. 103-05; Gilliland, supra note 2, pp. 976-77. 

7. Mallison, supra note 2, pp. 62-74; Gilliland, supra note 2, pp. 984-85. 

8. See Mallison, supra note 2, pp. 65-69. 

9. Id., pp. 31-51; Gilliland, supra note 2, pp. 976-77. 

10. Mallison, supra note 2, p. 38. 

11. U.S. Laws, Statutes, etc., "Treaty for the Limitation and Reduction of Naval Armaments," art. 
22, U.S. Statutes at Large, 71st Congress (Washington: U.S. Govt. Print. Off., 1931), v. 46, pt. 2, pp. 2881- 
2882; reprinted in Schindler & Toman, supra note 5, pp. 881-82. 

12. See "Process-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty 
of London of April 22, 1930," American Journal of International Law, Supp., Official Docs., v. 31, pp. 137-39 
(1937), reprinted in Schindler & Toman, supra note 5, pp. 74-75; Mallison, supra note 2, pp. 79-80. 

13. U.S. Dept. of State, Treaties in Force: A List of Treaties and Other International Agreements of the United 
States in Force on January 1, 1989 (Washington: U.S. Govt. Print. Off., 1989), p. 365. 

14. Mallison, supra note 2, pp. 80, 117-21; Gilliland, supra note 2, p. 984; Charles J. Weiss, "Problems 
of Submarine Warfare Under International Law," Intramural Law Review of New York University, v. 22, 
1967, pp. 136, 137-138. 

15. Mallison, supra note 2, p. 78; Gilliland, supra note 2, p. 985. 

16. Lautenschlager, supra note 1, p. 107. 

17. According to Professor Mallison, "On December 7, 1941 the United States Chief of Naval 
Operations sent a secret message to the Commander in Chief, U.S. Pacific Fleet which stated: "EXECUTE 
AGAINST JAPAN UNRESTRICTED AIR AND SUBMARINE WARFARE." Mallison, supra note 2, 
p. 87. 



238 Law of Naval Operations 

18. See International Military Tribunal, "Testimony of Fleet Admiral Nimitz, U.S. Navy, 11 May 1946, 
Regarding Naval Warfare in the Pacific from 7 December 1941, Including the Principles Governing the 
Rescue of Survivors of Sunk Enemy Ships (Exhibit Doenitz-100)," Trial of the Major War Criminals Before 
the International Military Tribunal (Nuremberg: International Military Tribunal, 1949), v. 40, pp. 108-111 
(hereinafter cited as International Military Tribunal). 

19. II, v. 1, p. 311. 

20. Id., v. 18, pp. 312-23. 

21. Id., v. 1, p. 312. 

22. Id., pp. 312-13. 

23. Mallison, supra note 2, p. 81. 

24. International Military Tribunal, supra note 18, v. 1, p. 313. It has been suggested, however, that 
in fact the risk to neutral vessels as a result of the U.S. declaration of unrestricted submarine warfare 
in the Pacific was not as great because of the relative scarcity of neutral shipping in the Pacific zones 
during World War II. Robertson, supra note 2, p. 8. 

25. W. Hays Parks, "Submarine-Launched Cruise Missile and International Law: A Response," U.S. 
Naval Institute Proceedings, September 1977, p. 120; Alex A. Kerr, "International Law and the Future of 
Submarine Warfare," U.S. Naval Institute Proceedings, October 1955, p. 1107. 

26. International Military Tribunal, supra note 18, v. 1, p. 313. 

27. This was the infamous "Laconia Order." Mallison, supra note 2, p. 137. 

28. International Military Tribunal, supra note 18, v. 1, p. 313. The source of the rule on rescue of 
survivors is the "Geneva Convention for the Amelioration of the Condition of Wounded, Sick and 
Shipwrecked Members of the Armed Forces at Sea, United States Treaties and Other International Agreements, 
T.I.A.S. No. 3363 (Washington: U.S. Dept. of State, 1955), v. 6, pt. 3, pp. 3217-3693. 

29. The Tribunal's judgment is confusing on this point. In its short discussion of the charge that Doenitz, 
by the "Laconia Order," forbade submarine commanders from complying with the international law duty 
to rescue survivors of sunken ships, the Tribunal ends up again referring to the 1936 Protocol's provisions 
on the "rescue" of merchant ship crews and passengers prior to sinking, clearly a separate issue. 
International Military Tribunal, supra note 18, v. 1, p. 313. 

30. Mallison, supra note 2, pp. 84-86, 137-38. 

31. International Military Tribunal, supra note 18, v. 1, p. 313. 

32. Mallison, supra note 2, pp. 139-43. 

33. Nimitz Testimony, International Military Tribunal, supra note 18, p. 110. 

34. Id. 

35. Robert W. Tucker, "The Law of War and Neutrality at Sea," International Law Studies 1955 
(Washington: U.S. Govt. Print. Off., 1957), v. 50, pp. 181-195. 

36. International Military Tribunal, supra note 18, v. 1, p. 313. 

37. The Protocol is quoted in the text accompanying note 12, above. 

38. Tucker, supra note 35, pp. iv-v; Mallison, supra note 2, pp. 129-32. 

39. See Gilliland, supra note 2, p. 989. 

40. See Weiss, supra note 14, p. 149; Gilliland, supra note 2, p. 1002. 

41. General sources for this section include Jane 's Fighting Ships, supra note 2, pp. 696-718; Friedman, 
supra note 2; Mallison, supra note 2; Lautenschlager, supra note 1; Gilliland, supra note 2; Jon Boyes and 
W.J. Ruhe, "The Role of U.S. Submarines," The Submarine Review , October 1987, pp. 15-23; Admiral Ronald 
Hayes, USN, "CINCPAC's Submarine Views," The Submarine Review, January 1987, pp. 44-48. 

42. Lautenschlager, supra note 1, p. 95. 

43. Id. 

44. Id. 

45. Boyes and Ruhe, supra note 41, pp. 15-16. 

46. Id., pp. 19-23; Lautenschlager, supra note 1, p. 95. 

47. Lautenschlager, supra note 1, pp. 134-38. 

48. Id., p. 134; Robertson, supra note 2, pp. 8-9. 

49. For a presentation and analysis of these reasons, see Lautenschlager, supra note 1, pp. 134-38. 

50. See Samuel L. Morison, "Falklands (Malvinas) Campaign: A Chronology," U.S. Naval Institute 
Proceedings, June 1983, pp. 119-24. 

51. Gilliland quotes from remarks made by Captain Louis Chelton, former Chief Naval Judge Advocate 
of the Royal Navy (U.K.), in confirming that British exclusion zones in the Falklands War were designed 
to allow Royal Navy commanders "to engage a militarily important target without undue hesitation, 
or the need for the sort of position [sic; positive?] identification criteria, the obtaining of which could 
have hazarded unduly the ship's safety." Gilliland, supra note 2, p. 1003, note 182. 

52. Morison, supra note 50, p. 121. 

53. E.g., Mallison, supra note 2, p. 16; Gilliland, supra note 2, p. 979. 



Jacobson 239 

54. The United Nations Charter (1945), the Universal Declaration of Human Rights (1948), and at 
least 16 subsequent human rights treaties, to most of which a majority of the world's states are parties, 
attest to this. See the list set forth in Louis Henkin et al., International Law: Cases and Materials, 2nd ed. 
(St. Paul: West Publishing Co., 1987), pp. 991-92. 

55. See II, pp. 991-992. 

56. Mallison, supra note 2, pp. 29-53. 

57. International Military Tribunal, supra note 18, v. 1, pp. 311-13. 

58. Mallison, supra note 2, p. 106. 

59. The contrast is, of course, to the two great wars of this century, each fought on a global scale, 
with national survival an objective of the belligerents. In a global war on our ocean planet, true neutral 
shipping is both less likely to exist and, where it does exist, more understandably subject to belligerent 
restriction and risk of harm. In a war fought for national survival, belligerents are more likely to commit 
and justify actions that cause injury and death to civilian populations of their enemies. Clearly, a limited 
war can be one of limited geography, but in which national survival of the belligerents is at stake; the 
Iran-Iraq War is a current example. This chapter makes no special effort to attempt to draw distinctions 
between types of limited wars as grounds for differing rules of submarine warfare. Perhaps such distinctions 
are appropriate. The main purpose of this chapter in contrasting general wars and limited wars is to suggest 
that conduct during the World Wars, which were both global and fought for national survival, is not 
necessarily a precedential basis for formulation of warfare rules for today's limited wars regardless of 
the nature of the limitation. 

60. The New York Times reported the reaction as one of "shock and dismay." William Borders, 
"Falklands Casualties Bring Dismay in Europe," The New York Times, 5 May 1982, p. Al: 4-6. See also 
Gilliland, supra note 2, p. 994, note 130. 

61. Morison, supra note 50, p. 121. 

62. E.g., Weiss, supra note 14, pp. 148-49; Gilliland, supra note 2, pp. 978-79. 

63. Weiss, supra note 14, pp. 148-49. Gilliland, supra note 2, discusses Weiss' proposal at pp. 996-1005. 

64. See Gilliland, supra note 2, p. 1003, note 182. 

65. See Thomas M. Daly, "The Enduring Gulf War," U.S. Naval Institute Proceedings, May 1985, pp. 
148-61. 

66. See Mallison, supra note 2, pp. 52-53. 

67. The United States has claimed exclusion zones during the Korean War and during the Cuban Missile 
Crisis. Gilliland, supra note 2, p. 992; John W. Robertson, "Blockade to Quarantine in International Law," 
JAG Journal, June 1963, v. 17, p. 87. 

68. Mallison, supra note 2, pp. 124-25. Hospital ship markings are designated in the 1949 "Geneva 
Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the 
Armed Forces at Sea," United States Treaties and Other International Agreements (U.S. Govt. Print. Off., 1955), 
v. 6, p. 3217, T.I.A.S. No. 3363, reprinted in Schindler & Toman, supra note 5, p. 401. 

69. Mallison, supra note 2, pp. 126-28. The leading case supporting the immunity of coastal fishing 
vessels from capture or destruction remains The Paquete Habana, 175 U.S. 677 (1900). 

70. This rule is found in the 1907 "Convention Relative to the Laying of Automatic Submarine Contact 
Mines (Hague VIII)," Oct. 18, 1907, art. 1, par. 3, U.S. Statutes at Large, v. 36, p. 2332, reprinted in 
Schindler & Toman, supra note 5, p. 803. 

71. See Howard S. Levie, "Mine Warfare and International Law," Richard B. Lillich and John Norton 
Moore, eds., Readings in International Law from the Naval War College Review 1947-1977, v. II (International 
Law Studies v. 62, Newport, R.I.: Naval War College Press, 1980), pp. 271-79. 

72. D.P. O'Connell, "The Legality of Naval Cruise Missiles," American Journal of International Law, v. 
66, p. 785 (1972); Scott C. Truver, "The Legal Status of Submarine-Launched Cruise Missiles," U.S. Naval 
Institute Proceedings, August 1977, pp. 82-84. 

73. Truver, supra note 72, p. 83. 

74. Id. 

75. Parks, supra note 25, pp. 120-22. 

76. See Howard S. Levie, "Nuclear, Chemical, and Biological Weapons," infra, Chapter 11. See also, 
e.g., Istvan Pogany, ed., Nuclear Weapons and International Law (New York: St. Martin's Press, 1987); Arthur 
Selwyn Miller and Martin Feinrider, eds., Nuclear Weapons and the Law (Westport, Conn.: Greenwood 
Press, 1984); Ian Brownlie, "Some Legal Aspects of the Use of Nuclear Weapons," International & 
Comparative Law Quarterly, v. 14, p. 437 (1965). 

77. See the 1958 Geneva "Convention on the High Seas," United States Treaties and Other International 
Agreements, T.I.A.S. No. 5200 (Washington: U.S. Dept. of State, 1962), v. 13, pt. 2, p. 2312, art. 2. The 
current customary law concerning freedom of navigation within exclusive economic zones is probably 
reflected in the United Nations Conference on the Law of the Sea, 3d, United Nations Convention on the 



240 Law of Naval Operations 

Law of the Sea, A/CONF. 62/122 (n.p.: 1982), art. 58. This treaty was adopted in 1982 but is not yet in 
force. 

78. See "Convention on the High Seas," supra note 77, art. 6. 

79. See e.g., "Discussion," John M. Van Dyke, ed., Consensus and Confrontation: The United States and 
the Law of the Sea Convention (Honolulu: Law of the Sea Institute, 1985), pp. 292-311; Jon L. Jacobson, 
"Law of the Sea— What Now?" Naval War College Review, March -April 1984, p. 96. The 1982 treaty's 
provisions on straits transit are found in United Nations Convention on the Law of the Sea, supra note 77, arts. 
37-44. 

80. See sources cited in the preceding note. 

81. United Nations Convention on the Law of the Sea, supra note 77, arts. 46-54. 

82. Id., arts. 47, 53-54. 

83. See "Discussion," supra note 79, p. 293. 

84. U.S. Navy Dept., The Commander's Handbook on the Law of Naval Operations, NWP 9 (Washington: 
1987). 

85. Id., par. 8.2.1. 

86. Id., par. 8.3. 

87. Id., pars. 5.4.2 and 11.6. 

88. Id., par. 11.6. 

89. Id., par. 8.3. 

90. Id., pars. 5.4.2, 6.2.3.2, 11.6. 

91. Id., par. 6.2.5. 

92. See, e.g., Gilliland, supra note 2, p. 987, note 77 and sources there cited. 

93. NWP 9, supra note 84, par. 8.3.1. 

94. Id. 

95. Compare id., par. 8.3.2 with par. 8.2.3. 

96. Id., par. 8.3.1. By contrast, the Handbook, in paragraph 8.2.2.2, states that the comparable exception 
occurs for surface warships when the merchant vessel is "[ajctively resisting visit and search or capture," 
or "[rjefusing to stop upon being summoned to do so." It is probable that the differences in wording 
result because the Handbook's authors were in each case attempting merely to restate the Protocol's rules 
in a general way and that, therefore, the differences are not in themselves significant. It might be preferable 
to quote the Protocol's words verbatim. 

97. The Protocol is quoted in the text accompanying note 12 supra. 

98. NWP 9, supra note 84, par. 8.3.1. 

99. Id. 

100. Id. 

101. Id., par. 7.5. 

102. Id., par. 7.9.1. 

103. Id. 

104. Id., par. 7.7.5. 

105. Id., par. 7.8. 

106. Id. 

107. Id., par. 7.8.1. 

108. Id., par. 8.2.3. 

109. Id., par. 8.5. 

110. "Convention Relative to the Laying of Automatic Submarine Contact Mines," supra note 70. 

111. NWP 9,' supra note 84, par. 9.3. 

112. Id., par. 9.7. 

113. Id., par. 9.1.2. 

114. Id., par. 10.2.1. 

115. Id. 

116. See Pogany, supra note 76; Miller and Feinrider, supra note 76; Brownlie, supra note 76. 

117. NWP 9, supra note 84, par. 7.3.5. 

118. Id., pars. 1.4.3, 7.3.6. The Handbook does recognize that "[t]he balance of neutral and belligerent 
rights and duties with respect to neutral waters is, however, at its most unsettled in the context of 
archipelagic waters." Id., par. 7.3.6. 



** 



S.V. Mallison and W.T. Mallison 241 



Chapter IX 

Naval Targeting: 
Lawful Objects of Attack 

by 
Sally V. Mallison* and W. Thomas Mallison 

I. Naval Operations and Law 

International law comprises both customary and treaty components. 1 
Customary law is based upon the incident-by-incident and case-by-case 
development through practical experience and an implicit acceptance by a 
preponderance of governments. Treaty law is the express agreement of states 
on particular subjects. International law is made and developed by 
governments in order to protect governmental interests, and among these 
interests is the efficient and lawful use of armed forces. Since the time of 
The Prize Cases, 2 decided by the U.S. Supreme Court during the Civil War, 
the law of armed conflict has applied to any situation where international 
armed conflict exists factually. Consequently, it is not necessary that there 
be a declaration of war or a so-called technical "state of war" to make the 
law applicable. This is codified in a common provision which appears in each 
of the four Geneva Conventions for the Protection of War Victims (1949) 
which states that the Conventions shall apply "to all cases of declared war 
or of any other armed conflict" between the state parties "even if the state 
of war is not recognized by one of them." 3 

The binding force of international law is stated directly in Navy 
Regulations: 

At all times a commander shall observe, and require his command to observe, the 
principles of international law. Where necessary to fulfillment of this responsibility, 
a departure from other provisions of Navy Regulations is authorized. 4 

The Chief of Naval Operations has the responsibility to ensure that the 
obligations of the Navy under the law of armed conflict are observed and 
enforced. Alleged violations of the law of armed conflict are to be promptly 
reported and thoroughly investigated. Corrective action is to be taken whenever 
required. 5 At the present time officers of the Judge Advocate General's Corps 
provide legal advice concerning Navy responsibilities under international law 
including the law of armed conflict. In the early history of the Navy, when 



242 Law of Naval Operations 

such legal advice was not provided, naval officers were held to a high standard 
of compliance with law, both international and domestic. An example is 
provided by Little v. Barreme, 6 a unanimous decision of the U.S. Supreme Court 
written by Chief Justice John Marshall. In the limited naval war with France, 
the Congress provided by statute for the capture of vessels meeting certain 
criteria engaged in commerce with France. The President issued instructions 
to the Navy to capture particular vessels including, as found by the Supreme 
Court, vessels not covered by the statute. Captain Little, USN, captured The 
Flying Fish in compliance with the instructions of the President and sent it in 
for adjudication in the prize court which determined that the capture was not 
authorized by the statute. The owners of the vessel incurred damages of $8,504.00 
as a result of the unlawful capture and detention and they sued Captain Little 
personally for this amount. The Supreme Court, while expressing sympathy 
for Captain Little, who had acted in good faith, held that he was personally 
liable for the damages caused by the unlawful act. The breadth of the holding 
in this case is accurately summarized in the headnote which appears in the official 
U.S. Supreme Court Reports: 

The commander of a ship of war of the United States, in obeying his instructions from 
the President of the United States, acts at his peril: if those instructions are not strictly 
warranted by law, he is answerable in damages to any person injured by their execution. 

At the time that judgment was entered against Captain Little, he was 
required by statute to obey the orders of his superiors without any 
qualification concerning the lawful or unlawful character of the order. 7 At 
the present time officers of the armed services are only required to obey 
"lawful" orders as prescribed by article 92 of the Uniform Code of Military 
Justice, entitled "Failure to obey order or regulation." This article provides: 

Any person subject to this chapter who — 

(1) violates or fails to obey any lawful general order or regulation; 

(2) having knowledge of any other lawful order issued by a member of the armed forces, 
which it is his duty to obey, fails to obey the order; or 

(3) is derelict in the performance of his duties; shall be punished as a court-martial may 
direct. 8 

The law of naval targeting is based upon three fundamental principles 
which are stated in the U.S. Navy's Commander's Handbook on the Law of Naval 
Operations: 

1. The right of belligerents to adopt means of injuring the enemy is not unlimited. 

2. It is prohibited to launch attacks against the civilian population as such. 

3. Distinctions must be made between combatants and non-combatants, to the effect 
that non-combatants be spared as much as possible. 9 

Because the law of armed conflict (LOAC) is an eminently practical law 
which takes into account military efficiency, these basic legal principles are 
consistent with the military principles of objective, mass, and economy of 
force. The law requires that only militarily significant objectives be attacked, 









S.V. Mallison and W.T. Mallison 243 

but it permits the use of sufficient mass to destroy those objectives. Economy 

of force requires that no more effort should be directed against a military 

objective than is necessary to accomplish it. In addition, the law of naval 

targeting provides that all reasonable precautions must be taken to ensure 

that only military objectives are targeted and that non-combatants and civilian 

objects are spared as much as possible from the effects of armed conflict. 

The most important treaties which are applicable to naval targeting and 

lawful objects of attack or capture are the following: 

Declaration of Paris Concerning Maritime Law (1856) 10 

Hague Convention (IV) Respecting the Laws and Customs of War on 

Land (1907) 11 

Hague Convention (VI) Relating to the Status of Enemy Merchant Ships 

at the Outbreak of Hostilities (1907) 12 

Hague Convention (VII) Relating to the Conversion of Merchant Ships 

into War-Ships (1907) 13 

Hague Convention (VIII) Relative to the Laying of Automatic 

Submarine Contact Mines (1907) 14 

Hague Convention (IX) Concerning Bombardment by Naval Forces in 

TimeofWar(1907) 15 

Hague Convention (X) for the Adaptation to Maritime Warfare of the 

Principles of the Geneva Convention (1907) 16 

Hague Convention (XI) Relative to Certain Restrictions with Regard 

to the Exercise of the Right of Capture in Naval War (1907) 17 

Process-Verbal Relating to the Rules of Submarine Warfare (London, 

1936) 18 

Geneva Convention (II) for the Amelioration of the Condition of the 

Wounded, Sick and Shipwrecked Members of Armed Forces at Sea 
(1949)19 

The listed treaties to which the United States is a state party remain in 
effect and are a part of the supreme law of the land under Article VI of the 
Constitution. The others, Hague Conventions VI and VII and the Declaration 
of Paris, are important also because they contain some binding principles of 
the customary law of naval warfare. In spite of the title of Hague Convention 
IV, concerning land warfare, it states basic principles equally applicable to 
naval targeting. For example, it prohibits the employment of "arms, 
projectiles, or material calculated to cause unnecessary suffering." 20 Because 
of changes in the technology of naval warfare, some of the treaties are less 
applicable to contemporary naval targeting than when they were written. 

II. The Law Prior to the World Wars 

In the historic era when privateering and piracy were widespread, 
merchant ships were armed for defensive purposes. After the substantial 



244 Law of Naval Operations 

abandonment of privateering and the near elimination of piracy, it became 
unusual for a merchant ship to be armed. Following the development of 
armored warships in the U.S. Civil War, such ships became further specialized 
in offensive and defensive capabilities and were consequently very different 
from merchant ships. The military weakness of the merchant ship entitled 
it to special protection and the customary principle that it could not be 
lawfully attacked without warning was adopted. 21 The procedures of visit 
and search by warships were used in naval warfare to enable boarding officers 
to determine the existence of probable grounds for capture and adjudication 
in prize. The intrinsic value of merchant ships made their capture rather than 
their destruction advantageous to the capturing state. The determination of 
whether or not a capture was lawful under the then criteria of international 
law was made by prize courts. These courts were domestic courts which 
applied the widely agreed upon international law criteria. 22 The effective 
enforcement method which ensured a high degree of uniformity in the 
decisions of diverse national courts was mutuality and reciprocity. The judges 
of each national prize court recognized that the standards it applied to enemy 
merchant ships and neutral ships charged with violating the law would be 
the same standards which foreign prize courts would apply to its merchant 
ships. 23 Elaborate rules concerning enemy and neutral ships and the cargoes 
they carried were developed in the customary law. The Declaration of Paris 
(1856), 24 the first multilateral treaty on the law of naval warfare covered 
privateering and blockades as well as the basic rules of naval economic 
warfare. It provided: 

1. Privateering is, and remains, abolished; 

2. The neutral flag covers enemy's goods, with the exception of contraband of war; 

3. Neutral goods, with the exception of contraband of war, are not liable to capture 
under enemy's flag; 

4. Blockades, in order to be binding, must be effective: that is to say, maintained by 
a force sufficient really to prevent access to the coast of the enemy. 

The original state parties to the Declaration of Paris were the major European 
naval powers of the time and Turkey. 25 The United States was not a party 
and regarded the prohibition of privateering as opposed to the interest of the 
minor naval powers including itself. 26 At the beginning of the Civil War the 
United States attempted to become an adherent to the Declaration because 
of the threat presented by the Confederate privateers, but the Declaration 
was closed and it was too late for further accessions. Article 1 of the 
Declaration of Paris has long been technologically obsolete, whereas article 
4 has been universally accepted as customary law. Articles 2 and 3 no longer 
address contemporary realities and they have been swept away by the 
comprehensive economic warfare practices of each of the major belligerents 
in the two World Wars. 



S.V. Mallison and W.T. Mallison 245 

III. The Development of the Law of 
Naval Targeting During the World Wars 

A. Beginning of Submarine Warfare: World War I. In 1914 the potential of 
the submarine warship as an efficient combatant unit, and in particular its 
ability to conduct economic warfare against enemy merchant ships, was not 
understood. It was assumed that submarines, like surface warships, would 
follow the time-honored procedures of visit and search. 27 Great Britain, as 
the predominant surface naval power, instituted the long-distance blockade 
and the use of the navicert system with the objective that merchant ships 
including neutral ones would not be able to assist the enemy war effort. 
During the First World War the traditional doctrine that enemy merchant 
ships may not be the object of direct attack was eroded because of the 
integration of such merchant ships into the naval forces of the enemy. In 
addition, the integration of some neutral ships into the war effort of the enemy 
required that a distinction be made between them and neutral ships 
participating in genuine inter-neutral trade. Those neutral ships which were 
participating in the Allied naval war effort were functionally no different 
from participating belligerent merchant ships and, therefore, contrary to the 
traditional doctrine, would appear logically to be lawful objects of attack. 

The arming of British merchant ships, even though it was stated to be for 
"defensive purposes" only, made it impractical for submarines to use the 
traditional visit and search techniques. In the nineteenth century merchant 
ships were privately owned and their voyages and cargoes were privately 
controlled. During the World Wars private ownership existed nominally, but 
the effective control was in the governments and it was exercised with the 
single objective of advancing the war effort. 28 A further consideration which 
made visit and search impossible was the employment of the British Q-ships, 
which appeared to be innocent merchantmen but were actually heavily armed 
warships employed to lure submarines to the surface and destroy them. 29 In 
addition, the adoption of the convoy system by Great Britain and the United 
States in 1917 integrated merchant ships into belligerent naval operations with 
the result that they became functional warships. 30 

Enemy warships remained lawful objects of attack without warning in the 
World Wars as they have always been historically. Because of the functional 
equivalency of participating merchant ships with warships, it would appear 
to be logically required that they also be lawful objects of attack without 
warning. This view was advanced by Germany as the preeminent submarine 
naval power. In the German view the proclamation of large submarine 
operational areas in the Atlantic Ocean where "unrestricted submarine 
warfare" was conducted provided adequate notice to neutrals to keep their 
merchant ships out of the proscribed area. 31 In a functional sense, Germany 
was conducting the same comprehensive methods of economic warfare which 



246 Law of Naval Operations 

were utilized by the Allied naval powers except that the German technique 
was enforced by submarines rather than by surface warships. There is no 
reason to believe that gunfire by surface warships, the ultimate sanction of 
the long-distance blockade, was more humanitarian than torpedoes fired by 
submarines. 

The views just summarized, however logical, were decisively rejected by 
Great Britain and the United Stated which claimed that the traditional 
procedures of visit and search were still required of submarines. 32 The only 
possible exception, in the view of the Allied naval powers, would be armed 
enemy merchant ships sailing in convoys escorted by warships. International 
conferences between the World Wars provided the opportunity for them to 
advance their claims in international law. 

B. Legal Developments Between the World Wars. During the Washington 
Naval Conference (1921-1922) Great Britain proposed the abolition of the 
submarine and Lord Lee made clear at the outset that in doing so "the British 
Empire had no unworthy or selfish motives." 33 He continued in reference 
to the submarine: 

It was a weapon of murder and piracy, involving the drowning of noncombatants. It 
had been used to sink passenger ships, cargo ships, and even hospital ships. Technically 
the submarine was so constructed that it could not be utilized to rescue even women 
and children from sinking ships and that was why he hoped that the conference would 
not give it a new lease of life. 34 

The French, Italian, Japanese, and United States delegations joined with the 
British in deploring the claimed inhumane and illegal use of submarines by 
Germany in the World War but favored their retention. 35 Secretary of State 
Charles Evans Hughes, the chairman of the conference, read into the record 
the full report on submarines which was prepared by the Advisory Committee 
of the United States delegation. It contained the following: 

The United States would never desire its Navy to undertake unlimited submarine 
warfare. In fact, the spirit of fair play of the people would bring about the downfall 
of the administration which attempted to sanction its use. 36 

Senator Elihu Root, a former secretary of state, proposed, in Article I of 
the draft treaty concerning submarines, certain rules of naval warfare, which 
were stated to be "an established part of international law." These rules 
required visit and search of merchant vessels by submarines as well as by 
surface warships. Article I further provided: 

Belligerent submarines are not under any circumstances exempt from the universal rules 
above stated; and if a submarine cannot capture a merchant vessel in conformity with 
these rules the existing law of nations requires it to desist from attack and from capture 
and to permit the merchant vessel to proceed unmolested. 37 

Article III stated the necessity for enforcement of the above rules and provided 
that: 



S.V. Mallison and W.T. Mallison 247 

any person in the service of any Power who shall violate any of these rules, whether 
or not such person is under orders of a government superior, shall be deemed to have 
violated the laws of war and shall be liable to trial and punishment as if for an act of 
piracy. . . . M 

The quoted provisions never became effective in spite of the support of the 
other participants in the Washington Conference because initially France, and 
then the others, refused to ratify the draft treaty. 

Article 22 of the London Naval Treaty of 1930 39 contained rules applicable 
to both surface and submarine warships. This 1930 treaty was terminated in 
1936 except for article 22 which was continued in effect as the Proces-Verhal 
Relating to the Rules of Submarine Warfare (1936) "without limitation of 
time.' , It provides: 

The following are accepted as established rules of International Law: 

(1) In their action with regard to merchant ships, submarines must conform to the rules 
of International Law to which surface vessels are subject. 

(2) In particular, except in the case of persistent refusal to stop on being duly summoned, 
or of active resistance to visit or search, a warship, whether surface vessel or submarine, 
may not sink or render incapable of navigation a merchant vessel without having first 
placed passengers, crew and ship's papers in a place of safety. For this purpose the ship's 
boats are not regarded as a place of safety unless the safety of the passengers and crew 
is assured, in the existing sea and weather conditions, by the proximity of land, or the 
presence of another vessel which is in a position to take them on board. 40 

The interpretation and application of these binding rules of law were left 
to the Second World War and its aftermath. The principal ambiguities 
concerning naval targeting which appear in the text are the meanings of the 
terms "merchant ships," and "a merchant vessel/' 

C. Continuation of Submarine Warfare: World War II. Writing at the 
beginning of the Second World War, Professor H. A. Smith pointed out the 
dramatic difference between trading practices at the time of the Declaration 
of Paris in 1856 and those in 1939: 

If we are again confronted with the facts for which the Declaration laid down the law, 
then that law must be applied to those facts. That is to say, if we can discover a genuine 
enemy private merchant carrying on his own trade in his own way for his own profit, 
then we must admit that his non-contraband goods carried in neutral ships are immune 
from capture at sea. Under the conditions of the modern socialistic world, such a person 
is not easily to be found. . . . Today he has become a disciplined individual mobilized 
in the vast military organization of the totalitarian State. 41 

At the beginning of the Second World War, the naval belligerents on both 
sides continued the practices which had been started in the First World War 
and made every effort to improve upon them. Great Britain had such complete 
control of the surface of the oceans that it was able to force neutral merchant 
shipping to participate in the Allied war effort. Ms. Behrens, writing in the 



248 Law of Naval Operations 

official British history of the Merchant Navy, described the intensification 
of the system in 1940: 

In the summer of 1940, the ship warrant scheme was launched, both to further the 
purposes of economic warfare and in order to force neutral ships into British service 
or into trades elsewhere that were held to be essential. No ship, it was ordained . . . was 
to be allowed any facilities in any port of the British Commonwealth unless the British 
had furnished her with a warrant. 42 

During the Second World War the United States, first as a neutral and 
then as a belligerent, cooperated fully with the British methods. 43 As a matter 
of theory neutral states did not have to cooperate with the Allied naval 
powers, but they realized that failure to cooperate would result in the 
application of much more stringent economic warfare measures against them. 
The result of this integration of neutral merchant ships into the Allied war 
effort is that they became lawful objects of attack like similarly employed 
belligerent merchant ships. 44 Only those few neutral merchant ships engaged 
in genuine inter-neutral trade were immune from attack. 

The British Defense of Merchant Shipping Handbook (1938) was distributed to 
the masters of the Merchant Navy ships in 1938. On the subject of "conditions 
under which fire may be opened" the Handbook stated that if the enemy adopts 
a policy of sinking merchant ships without warning 

it will then be permissible to open fire on an enemy surface vessel, submarine or aircraft, 
even before she has attacked or demanded surrender, if to do so will tend to prevent 
her gaining a favourable position for attacking. 45 

Subsequent instructions stated that the enemy had adopted such a policy of 
sinking without warning. 

At the outset of the Second World War, the German Navy incorporated 
the Proces-Verbal Relating to the Rules of Submarine Warfare, also known as 
the Protocol of 1936, into the German Prize Code which was distributed to 
submarine commanders. 46 By October 17, 1939 Germany issued the order to 
attack all enemy merchant ships without warning. 47 Thus, early in the conflict, 
merchant ships and submarines of the opposing belligerents were attacking 
one another without warning. Germany followed its operational area 
declarations of the First World War by providing that vast areas of the North 
Atlantic Ocean were a submarine operational zone in which Germany could 
assume no responsibility for either damage to ships or injury to personnel. 48 

On December 7, 1941, immediately following the attack on Pearl Harbor, 
the U.S. Chief of Naval Operations sent a secret message to the Commander- 
in-Chief, Pacific Fleet which stated: 

EXECUTE AGAINST JAPAN UNRESTRICTED AIR AND SUBMARINE 
WARFARE. 49 

Even though the "unrestricted" warfare was directed against Japan, it could 
nevertheless present a possible danger to neutral shipping in the vast Pacific 



S.V. Mallison and W.T. Mallison 249 

Ocean areas. Because the message was secret, it could not have provided 
notification to neutral states. However, the almost complete absence of 
neutral shipping in the Pacific made this problem more theoretical than real. 
The only shipping which Japan treated as neutral consisted of Russian ships 
sailing across the North Pacific between Siberian ports and Canadian and 
United States ports in the Pacific Northwest. While the Soviet Union was 
a belligerent in the European War, it remained technically neutral in the 
Pacific War until a few days before the Japanese surrender. 

Throughout the Pacific War, the merchant ships of both the United States 
and Japan were fully integrated into the naval war effort. As a practical 
matter, such ships were indistinguishable from formally commissioned naval 
auxiliary warships, 50 and such merchant ships, like warships, were lawfully 
subject to attack without warning. The United States reversed its prior 
position and, along with Japan, and the other naval belligerents in the Pacific 
War, it recognized that such merchant ships were functional warships and 
were subject to the same rules of international law. 

There are inconsistent analyses concerning the interpretation of the 
Protocol of 1936 as applied to the events of the Second World War. Professor 
Robert Tucker, writing in a Naval War College "Blue Book," has stated 
concerning the Atlantic War: 

Despite this reaffirmation of the traditional law in the 1936 London Protocol, the record 
of belligerent measures with respect to enemy merchant vessels during World War II 
fell far below the standards set in the preceding conflict. In the Atlantic Germany 
resorted to unrestricted submarine and aerial warfare against British merchant vessels 
almost from the very start of hostilities. . . . 51 

In the final stages of the conflict, the measures taken by Great Britain against enemy 
shipping wherever encountered were only barely distinguishable from a policy of 
unrestricted submarine warfare. 52 

Professor Tucker has also commented on the legal situation in the Pacific 
War: 

In the Pacific War no attempt was made by either of the major naval belligerents to 
observe the obligations laid down by the 1936 London Protocol. Immediately upon the 
outbreak of war the United States initiated a policy of unrestricted aerial and submarine 
warfare against Japanese merchant vessels, and consistently pursued this policy 
throughout the course of hostilities. Japan, in turn, furnished no evidence of a willingness 
to abide by the provisions of the Protocol. . . , 53 

Another "Blue Book" contains a different analysis of this subject: 

Professor Tucker has apparently assumed that the Protocol is designed to protect 
merchant vessels which are participating in the naval war effort. This does not take 
adequate account of the close relationship between the performance of combatant 
functions and the ensuing liability to attack without warning. In addition, it is 
inconsistent with the legislative history concerning the interpretation of "merchant 
vessel" as used in the Protocol. 54 

The ambiguity concerning the terms "merchant ships" and "a merchant 
vessel" used in article 22 of the London Naval Treaty of 1930 and in the 



250 Law of Naval Operations 

identically worded Protocol of 1936 is considerably clarified by the Report 
of the Committee of Jurists of April 3, 1930 written by the lawyers who 
drafted the text. 

The Committee wish to place it on record that the expression "merchant vessel," where 
it is employed in the Declaration, is not to be understood as including a merchant vessel 
which is at the moment participating in hostilities in such a manner as to cause her 
to lose her right to the immunities of a merchant vessel. 55 

This stated criterion is more realistic than a test which attempts to 
distinguish between armed and unarmed merchant vessels. It is probably more 
important for the efficient conduct of anti-submarine warfare in particular 
contexts to have merchant ships make radio reports of submarine contacts 
than to have such ships armed. In addition, the great unarmed British 
passenger liners Queen Mary and Queen Elizabeth each had the capability of 
transporting an entire infantry division and its equipment at a high sustained 
speed without naval escort and consequently provided a significant 
contribution to the Allied naval war effort. Because of their effective 
participation, it cannot be doubted that they were lawful objects of attack. 

Although the 1936 Protocol is sometimes referred to as the "Submarine 
Protocol," its second paragraph refers to "a warship, whether surface vessel 
or submarine." Consequently, the identical legal regime concerning attacks 
on merchant ships applies to both surface and submarine warships. Gunfire 
from surface warships is the ultimate sanction of the long-distance blockade 
employed by the Allied naval powers in both world wars. A surface warship 
may lawfully attack a belligerent or neutral vessel which is attempting to 
breach the blockade or resist visit and search. 

One of the factors considered in treaty interpretation is the working 
interpretation given to the treaty by the state-parties. 56 The original state- 
parties to the 1936 Protocol included the great naval powers of the time: Great 
Britain, United States, Japan, France, and Italy. 57 Germany became a state- 
party shortly thereafter. 58 The working interpretation given to the Protocol 
by all six of these state-parties which were naval belligerents in the Second 
World War was that belligerent and neutral merchant ships participating in 
the naval war effort were not entitled "to the immunities of a merchant 
vessel" to use the wording employed by the Committee of Jurists who drafted 
the text. Therefore, the Protocol of 1936 is accurately interpreted as applying 
only to merchant ships which were not part of the war effort of the naval 
belligerents. In the Second World War there were but few merchant ships 
entitled to this protection. This legal situation is not a drastic departure from 
the traditional law which was applied prior to the World Wars. In that pre- 
existing law the immunity of a merchant ship was also conditioned upon its 
not participating in any way in the naval hostilities. The long-established 
principle of customary law that a unit or ship may not exercise belligerent 
functions without simultaneously becoming a lawful object of attack remains 



S.V. Mallison and W.T. Mallison 251 

valid. There is no evidence to show that the Protocol of 1936 was designed 
to change this. 

A conclusion written several years ago appears to be equally applicable 
now: 

In summary, the juridical criteria to determine whether or not a merchant vessel is 
participating in the war or hostilities in a way which results in losing "the immunities 
of a merchant vessel" should be determined by the fact of such participation and not 
by the particular method of participation. 59 

The most important category of ships immune from attack is hospital ships. 
Customary law was first codified in the 1899 Hague Convention (III) for the 
Adaptation to Maritime Warfare of the Principles of the Geneva Convention 
of 22 August 1864, 60 which adapted the principles of the law of land warfare 
for the protection of wounded in armies in the field, to the maritime 
environment. Hague Convention (X) (1907) 61 revised and enlarged the 1899 
Hague Convention. It was applicable in both world wars. The first Geneva 
Convention (1864) 62 for the protection of war victims comprised only ten 
articles and was limited to the protection of wounded personnel of armies 
in the field and to attending hospital and ambulance personnel. 63 The 1907 
Hague Convention prescribed the legal regime for hospital ships in more detail 
than did the Hague Convention of 1899, specifying the external distinctive 
markings of hospital ships and requiring such ships to provide medical 
assistance to the wounded, sick, and shipwrecked personnel of the belligerents 
without distinction of nationality. Military interests were protected by the 
requirement that hospital ships must not be used for any military purpose. 
As a general rule, the immunity of hospital ships was respected in both World 
Wars with the exception of an incident in the First World War in which 
a German submarine sank a British hospital ship. 64 

Cartel ships are also immunized from attack. The term "cartel" 
traditionally referred to an agreement between enemy belligerents 
concerning the exchange of prisoners of war. It is now used to refer to any 
non-hostile interaction of the belligerents governed by special agreement. In 
1945 the Japanese merchant ship Awa Mam undertook a voyage for a 
prescribed purpose and upon a specified route agreed to by the United States 
and Japan. 65 The principal purpose was to carry relief supplies furnished by 
the United States to United States and Allied nationals held in Japanese 
custody upon the Asian mainland. On the return voyage to Japan, the ship 
was sunk without warning by a U.S. submarine. The commanding officer 
of the submarine, who had not seen the message immunizing the vessel, was 
subsequently relieved of his command and convicted by court martial of 
negligence in carrying out orders. 66 In the ensuing diplomatic interchange, 
the United States apologized and offered to provide Japan with a vessel of 
similar size and characteristics to replace the Awa Mam. 61 



252 Law of Naval Operations 

The U.S. Supreme Court held in The Paquete Habana, 6 * a decision arising 
from the Spanish-American War, that coastal fishing boats were not liable 
to capture and condemnation in prize. The ruling in this case is codified in 
Hague Convention No. XI (1907), 69 which provides that vessels "used 
exclusively for fishing along the coast or small boats employed in local trade 
are exempt from capture." The Convention further provides that they cease 
to be exempt whenever they take part in hostilities. 

IV. The Application of the Law of Naval Targeting to War Crimes; 
and Post Second World War Humanitarian Law Treaties 

A. War Crimes Trials 

1 . The Trial of Admiral Doenitz 

The only war crimes trials conducted by international tribunals were those 
before the International Military Tribunal at Nuremberg and the 
International Military Tribunal for the Far East at Tokyo. The International 
Military Tribunal at Nuremberg conducted the trial of the principal leaders 
of the former German Government who were accused of war crimes or crimes 
against humanity. The case in which the Tribunal directly addressed the law 
of naval warfare was that of Admiral Doenitz, who initially commanded the 
German submarine force and was subsequently commander-in-chief of the 
navy. Admiral Doenitz was charged with planning aggressive war (count 
one), conducting aggressive war (count two), and with war crimes (count 
three) by "waging unrestricted submarine warfare contrary to the Naval 
Protocol of 1936. " 70 Sir Hartley Shawcross, the chief British prosecutor, stated 
to the Tribunal: 

Nor need we take time to examine the astonishing proposition that the sinking of neutral 
shipping was legalized by the process of making a paper order excluding such neutral 
ships not from some definite war zone over which Germany exercised control but from 
vast areas of the seas. 71 

The judgment of the Tribunal, after stating that it "is not prepared to hold 
Doenitz guilty for his conduct of submarine warfare against British armed 
merchant ships," continued: 

However, the proclamation of operational zones and the sinking of neutral merchant 
vessels which enter those zones presents a different question. This practice was employed 
in the war of 1914-1918 by Germany and adopted in retaliation by Great Britain. The 
Washington Conference of 1922, the London Naval Agreement of 1930, and the Protocol 
of 1936 were entered into with full knowledge that such zones had been employed in 
the First World War. Yet the Protocol made no exception for operational zones. The 
order of Doenitz to sink neutral ships without warning when found within these zones 
was, therefore, in the opinion of the Tribunal, a violation of the Protocol. 72 

The unreasonable and unworkable result of the holding here is that the 
Tribunal accepts the legality of German operational or exclusion zones as 
applied to belligerent merchant vessels but regards the same zones as unlawful 



S.V. Mallison and W.T. Mallison 253 

when applied to neutral merchant vessels. In doing this, the Tribunal ignored 
the fact that in the Second World War many neutral merchant vessels were 
sailing in the same convoys with belligerent merchant vessels and the two 
were functionally indistinguishable from one another. 

The term "neutral merchant vessels" used by the Tribunal is more precise 
than the wording concerning merchant vessels in the Protocol, but it remains 
ambiguous and comprises at least two distinct categories: those engaged in 
genuine inter-neutral trade which does not contribute to the economic 
warfare resources of a belligerent, and those neutral vessels which through 
acquiescence or coercion, participate in the naval war effort of a belligerent. 
The factual reality was that there were no immune neutral vessels in the 
Atlantic Ocean proscribed areas. The Tribunal's invocation of the 
normatively ambiguous term, "neutral merchant vessels," enabled it to avoid 
facing the facts concerning the integration of neutral shipping into the Allied 
naval war effort. The Tribunal applied the Protocol to Admiral Doenitz as 
if it were a criminal statute. He was found innocent on count one (planning 
aggressive war), guilty on count two (conducting aggressive war), and guilty 
on count three (war crimes). However, the ten year sentence imposed upon 
Doenitz was claimed not to be based upon count three because the United 
States also conducted "unrestricted submarine warfare" in the Pacific. 73 The 
result of this is that the sentence was based only on count two, according 
to the Tribunal, which involved nothing more than Doenitz carrying out his 
regularly assigned duties as a line officer. 

The principal criticism concerning the Doenitz Case, however, is properly 
directed at Sir Hartley Shawcross and the other British prosecution lawyers. 
They either knew, or should have known, in the exercise of at least minimum 
standards of professional responsibility, the factual reality of the integration 
of almost all neutral shipping into the Allied naval war effort. 74 As it was, 
they permitted the Tribunal to make a determination of guilt based on an 
erroneous factual assumption even though the Tribunal stated that the 
sentence was not based on this count. 

2. Other War Crimes Trials 

The war crimes trials other than the major trials at Nuremberg and Tokyo 
took place before national military tribunals which applied the international 
law of armed conflict. Captain Roskill, the official British historian of the 
naval war 1939-1945, has written: 

It is fair to mention there that, with one conspicuous exception, the captains of the 
German disguised raiders conducted their operations, which were a perfectly legitimate 
form of warfare, with due regard to international law. 75 

The exception referred to by Captain Roskill was the commander of a surface 
raider charged in the Trial of Von Ruchteschelt 76 before a British military tribunal 
with failure to give quarter during an attack on a British merchant ship. The 



254 Law of Naval Operations 

facts involved a daylight attack against the ship in which its wireless aerial 
was destroyed with the raider's first salvo. The raider maintained heavy fire 
and signaled that the ship attacked was not to use its radio. The case report 
states: "The captain of the Davisian stopped his engines, hoisted an answering 
pennant and acknowledged the signal." The raider's gunfire continued, 
however, for another fifteen minutes and wounded several crew members 
while they were trying to abandon ship. Captain Von Ruchteschell was 
convicted on the apparent basis that the ship attacked had given an 
unequivocal indication of surrender. After this manifestation of surrender, 
the Davisian was no longer a lawful object of attack. 

In addition to the trial of Admiral Doenitz before the International Miliary 
Tribunal at Nuremberg, there were two other cases involving the "Laconia 
order" which was issued by Admiral Doenitz on September 17, 1942 while 
he was serving as commander of the German submarine force. This order 
provided: 

(1) No attempt of any kind must be made at rescuing members of ships sunk, and this 
includes picking up persons in the water and putting them in life boats, righting capsized 
lifeboats and handing over food and water. Rescue runs counter to the rudimentary 
demands of warfare for the destruction of enemy ships and crews. 

(2) Orders for bringing in captains and chief engineers still apply. 

(3) Rescue the shipwrecked only if their statements would be of importance for your 
boat. 

(4) Be harsh, having in mind that the enemy has no regard for women and children 
in his bombing attacks on German cities. 77 

The Laconia order immediately followed Admiral Doenitz' attempt to 
establish a rescue zone of immunity during the period September 12-16, 1942, 
Captain Roskill has described the facts: 

In September 1942, a group of [four] U-boats and a "milch cow" (as the Germans called 
their supply submarines) arrived south of the equator, and there on the 12th U.156 sank 
the homeward-bound troop ship Laconia, which had 1,800 Italian prisoners on board. 
On learning from survivors what he had done, Hartenstein, the U-boat's captain, sent 
a series of messages en clair calling for help in the rescue work and promising immunity 
to ships sent to the scene, provided that he himself was not attacked. 78 

Admiral Doenitz ordered other U-boats to the rescue and the Vichy French 
Government was asked to send help from Dakar. The U-boats then took the 
principal role in the rescue operations which included towing lifeboats toward 
the African coast. This, of course, diverted the submarines from their regular 
wartime missions. Captain Roskill 's account continues: 

All went well until the next afternoon [September 16] when an American Army aircraft 
from the newly established base on Ascension Island arrived, flew around the surfaced 
U-boats for about an hour, and then attacked U.156 with bombs. It is as impossible 
to justify that act as it is difficult to explain why it was committed. 79 



S.V. Mallison and W.T. Mallison 255 

In 1960 the Historical Division of the U.S. Air Force stated concerning this 
incident: 

A summary of operations from Ascension Island states that on the morning of 16 
September 1942, a B-24 of the U.S. Army Air Forces sighted a submarine at 5 degrees 
South, 11 degrees 40 minutes West. The sub, which was towing two lifeboats and was 
in the process of picking up two more, was displaying a white flag with a red cross. 
The sub did not show any national flag when challenged by the B-24. The plane left 
the scene and contacted Ascension. Since no friendly subs were known to be in the area, 
the plane was instructed to attack. 80 

The person who issued the order to attack and the aircraft commander who 
carried it out are both prima facie guilty of a war crime. The conduct of the 
aircraft commander appears to be entirely inexcusable since he must have 
observed the rescue operation. During the time that they are engaged in such 
an operation, enemy submarines are no longer lawful objects of attack. The 
fact that the U.S. Army Air Forces took no action to investigate this incident 
and that no trials took place under the then-effective domestic military code, 
the Articles of War, is a serious reflection on the entire chain of military 
command. The attempt by Doenitz and Hartenstein to establish a rescue zone 
of immunity would have been effective if it had not been for the bombing. 
As it was, many of the personnel of the Laconia, including Italian prisoners 
of war and British civilian passengers, were rescued in an attempt which 
exemplifies the highest humanitarian traditions. The rescue attempt was 
entirely consistent with the central objective of the law of armed conflict 
to avoid unnecessary destruction of human values. Admiral Doenitz was 
charged with violating the rescue provisions of the Protocol of 1936 by issuing 
the order. There is, unfortunately, no evidence that the International Military 
Tribunal gave appropriate consideration to the rescue zone of immunity as 
the indispensable context in which the Laconia order was issued. The Tribunal 
did not find him guilty on this charge but it stated that the ambiguous terms 
of the order deserved the "strongest censure." 81 

The second case, the Trial of Moehle 82 before a British military tribunal, 
involved a German U-boat flotilla commander who was charged with a war 
crime in reading the Laconia order to captains of U-boats in his flotilla and 
of resolving the ambiguity in the order by providing examples in which the 
killing of survivors was approved. In convicting the defendant, the Tribunal 
accepted the contention of the prosecution that the examples used amounted 
to an order to kill. 

Although the third case, the Trial of Eck ("The Peleus Trial") 83 is widely 
regarded as an implementation of the Laconia order, it is significant that the 
defense in it did not invoke the order as a superior order which mandated 
the killing of survivors. In this case, also before a British military tribunal, 
the captain, two officers, and a rating of the German submarine U-852 were 
charged with: 



256 Law of Naval Operations 

Committing a war crime in that you in the Atlantic Ocean on the night of 13-14th March 
1944, when Captain and members of the crew of Unterseeboot 852 which had sunk the 
steamship Peleus in violation of the laws and usages of war were concerned in the killing 
of members of the crew of the said steamship, Allied nationals, by firing and throwing 
grenades at them. 84 

The prosecution resolved the ambiguity in the charge by stating that the 
defendants were not accused of sinking a merchant ship without warning, 
but of killing its survivors. The Peleus was of Greek registration and under 
charter to the British Ministry of War Transport. Following the sinking, the 
accused spent approximately five hours attacking the survivors and the 
floating wreckage with machine gun fire and hand grenades. All of the 
survivors except three were either killed or subsequently died of wounds. 
The three were rescued about a month later and recounted the grim events. 
The evidence indicated that the captain, Eck, ordered the shooting and that 
the others carried out his orders. The principal defense claim was that the 
actions were necessary to eliminate all traces of the sinking. An experienced 
U-boat commander, who was called on behalf of the defense, testified that 
the approved method of evading Allied anti-submarine attack following a 
sinking was to leave the scene at high speed. All of the accused were found 
guilty and Eck and the other two officers were condemned to death. 85 

The Judgment of the International Military Tribunal for the Far East states: 

Inhumane, illegal warfare at sea was waged by the Japanese Navy in 1943 and 1944. 
Survivors of passengers and crews of torpedoed ships were murdered. 86 

The commander of the Japanese First Submarine Force at Truk issued an order 
on March 20, 1943 which is translated and quoted by the Far East Tribunal: 

All submarines shall act together in order to concentrate their attacks against enemy 
convoys and shall totally destroy them. Do not stop with the sinking of enemy ships 
and cargoes; at the same time, you will carry out the complete destruction of the crews 
of the enemy's ships; if possible, seize part of the crew and endeavor to secure information 
about the enemy. 87 

Several examples of the carrying out of this flagrantly unlawful order are 
referred to in the judgment of the Tribunal. 88 One which is described in detail 
involved the sinking of the United States flag Liberty-type merchant ship Jean 
Nicolet, which had an armament manned by a U.S. Navy armed guard, and 
the brutal murder of most of the survivors of the sinking. 89 The Tribunal 
stated, inter alia, that the ship's boats were smashed by gunfire and that some 
of the crew members, with their hands tied behind their backs, had to run 
a gauntlet on the deck of the submarine before being forced into the water. 
The remainder of the crew were left on the deck of the submarine when 
it submerged. Twenty-two crew members who survived these grim events 
were rescued the next day and provided the testimony upon which the 
Tribunal's findings of fact were based. 



S.V. Mallison and W.T. Mallison 257 

Although aircraft attacked merchant vessels engaged in a belligerent's war 
effort during the Second World War, no trials took place involving such 
attacks. If such trials had taken place, they should have been conducted under 
the same legal criteria which would be properly applied in the trials 
concerning surface and submarine warfare. 

B. Events Following the Battle of the Bismarck Sea 

Unfortunately, it was not only Germans and Japanese who murdered 
survivors of ships they had attacked and sunk. In March 1943 the Japanese 
attempted to move about 7,000 soldiers by ship from Rabaul, New Britain 
where their military situation was increasingly precarious, to reinforce the 
Japanese Army in Lae, New Guinea. 90 This involved the transit of the 
Bismarck Sea by a convoy of eight transports escorted by eight destroyers. 

The U.S. Army Air Forces in the Pacific had had a poor record for 
accurately targeting small islands, much less targeting moving ships, up to 
this time. The new commander of the Fifth Air Force under General Douglas 
MacArthur, the Commander-in-Chief Southwest Pacific, was Lieutenant 
General George C. Kenney, who changed the situation by having his medium 
bombers practice low-level attacks so that this capacity was added to the 
existing capability of heavy bombers in high-level bombing. The result was 
apparent in the Battle of the Bismarck Sea where the B-25 bombers sank 
every transport in the convoy (except one sunk by high-level heavy bombers) 
and half of the destroyers. Once the ships were sunk, the U.S. Armed Forces 
followed practices, much criticized when the offenders were German or 
Japanese, of killing as many of the helpless survivors in the water as possible. 
Professor Samuel Eliot Morrison, the official historian of the U.S. Navy 
during the Second World War, provides the following account: 

Meanwhile planes and PTs went about the sickening business of killing survivors in 
boats, rafts or wreckage. Fighters mercilessly strafed anything on the surface. On 5 
March the two PTs which had sunk Oigawa Maru put out to rescue a downed pilot 
and came on an enemy submarine receiving survivors from three large landing craft. 
Torpedoes missed as the U-boat crash-dived. The PTs turned their guns on, and hurled 
depth charges at the three boats — which, with over a hundred men on board, sunk. 
It was a grisly task, but a military necessity since Japanese soldiers do not surrender 
and, within swimming distance of shore, they could not be allowed to land and join 
the Lae garrison. 

Japanese submarines and destroyers saved 2,734 men from the convoy, but over 3,000 
were missing. 91 

It is difficult to accept Professor Morrison's facile statement that Japanese 
soldiers do not surrender and his conclusion that a legitimate military necessity 
was involved. Some members of the Japanese Armed Forces, including the 
highly motivated Kamikaze pilots who participated in the Philippine and 
Okinawa operations, did surrender. It is not credible that Japanese soldiers 
without weapons who, it is assumed, could have made it to the New Guinea 



258 Law of Naval Operations 

shore would have become a military asset to the Japanese Army there. The 
greater probability concerning a then-unknown future is that they would have 
become an additional burden upon the supply and medical resources of that 
army. 92 Another historian, Professor Ronald H. Spector, has provided a 
substantially similar factual account of the events following the Battle of the 
Bismarck Sea but has indicated some skepticism concerning the claim of 
military necessity. 93 

If the same legal standards applied to Germans and Japanese who killed 
helpless survivors are followed in evaluating the actions of the U.S. Army 
Air Forces and the U.S. Navy following the Battle of the Bismarck Sea, there 
is no way they can be described as other than flagrant violations of customary 
and treaty law. It is a serious reflection on the entire chain of command that 
there was no investigation and no charges were brought against those who 
issued the orders. Justice Robert H.Jackson, the chief United States prosecutor 
before the International Military Tribunal at Nuremberg, stated the basic 
legal principle in 1945: 

If certain acts in violation of treaties are crimes, they are crimes whether the United 
States does them or whether Germany does them, and we are not prepared to lay down 
a rule of criminal conduct against others which we would not be willing to have invoked 
against us. 94 

Hague Convention X for the Adaptation to Maritime Warfare of the 
Principles o{ the Geneva Convention (1907), a treaty of the United States, 
provides in relevant part: 

After each engagement, the two belligerents, so far as military interests permit, shall take 
steps to look for the shipwrecked, sick and wounded, and to protect them, as well as the dead, 
against pillage and ill-treatment. 95 

The limitation in the treaty concerning "military interests" refers to 
legitimate military interests which are recognized as including only lawful 
objects of attack and therefore prohibits attacks on helpless survivors. 

C. Geneva Convention II for the Amelioration of the Condition of Wounded, 
Sick and Shipwrecked members of Armed Forces at Sea (1949) 

The four 1949 Geneva Conventions for the protection of war victims 96 were 
written in the shadow of the Second World War and were designed to prevent 
repetition of some practices associated with that conflict. Geneva Convention 
II sets forth more detail than Hague Convention X (1907) and in article 18 
(1) provides: 

After each engagement, Parties to the conflict shall without delay take all possible 
measures to search for and collect the shipwrecked, wounded and sick, to protect them 
against pillage and ill-treatment, to ensure their adequate care, and to search for the 
dead and prevent their being despoiled. 

The significance of this provision is that in addition to making "the 
shipwrecked, wounded and sick" unlawful objects of attack, it imposes 



S.V. MalNson and W.T. Mallison 259 

affirmative duties in terms of their protection and care on a non- 
discriminatory basis. Articles 22-35 provide more effective immunization 
from attack for hospital ships while prohibiting their use "for any military 
purpose" or for any acts "harmful to the enemy." Such ships may not possess 
or use secret communication codes and must be appropriately marked and 
notified to the enemy belligerent so as to facilitate their identification as 
hospital ships. Articles 36-40 provide enhanced protection for medical 
personnel and for medical transports including aircraft. 

D, Geneva Protocol I Concerning International Armed Conflicts (1977) 

The Geneva Diplomatic Conference on Humanitarian Law, which met for 
a period of several weeks in each of the four years from 1974 to 1977, produced 
Protocol I concerning international armed conflicts and Protocol II 
concerning internal armed conflicts. These Protocols deal with both the 
methods of armed conflict (known traditionally as "the Hague Law") and 
the protection of war victims (known traditionally as "the Geneva Law"). 
The Protocols are designed to supplement the Geneva Conventions of 1949 
by adding provisions which have become necessary as a result of more recent 
developments in the methods of armed conflict. 

Protocol I Additional to the Geneva Conventions of 12 August 1949, and 
Relating to the Protection of Victims of International Armed Conflicts 97 deals 
with both the methods of armed conflict and the protection of war victims 
in land combat situations, including those involving aircraft, as well as lawful 
objects of attack. Protocol I is a treaty in force with 86 state-parties currently, 
including several middle level military powers and allies of the United States. 98 
This constitutes more than half of the states in the world community and 
accords the Protocol a significant status as law through the agreement of 
states. In addition, many of the provisions of the Protocol are codifications 
of customary law. 99 The two major military powers which are state parties 
are the Peoples Republic of China and the Soviet Union. The position of the 
Reagan Administration was that Protocol I, which the United States has 
signed, will not be submitted to the ratification process. 100 

Articles 48-67 of the Protocol comprise a section which provides certain 
protections for the civilian population from the effects of hostilities including 
attack by aerial bombardment. Article 49(3) refers specifically to "sea 
warfare" and provides: 

The provisions of this Section apply to any land, air or sea warfare which may affect 
the civilian population, individual civilians or civilian objects on land. They further apply 
to all attacks from the sea or from the air against objectives on land but do not otherwise 
affect the rules of international law applicable in armed conflict at sea or in the air. 

Other provisions specify methods and objects of attack which are unlawful. 
Article 51(4) prohibits indiscriminate attacks and describes them as attacks 



260 Law of Naval Operations 

"of a nature to strike military objectives and civilians or civilian objects 
without distinction." Article 51(5) provides in full: 

Among others, the following types of attacks are to be considered as indiscriminate: 

(a) an attack by bombardment by any methods or means which treats as a single 
military objective a number of clearly separated and distinct military objectives located 
in a city, town, village or other area containing a similar concentration of civilians or 
civilian objects; and 

(b) an attack which may be expected to cause incidental loss of civilian life, injury 
to civilians, damage to civilian objects, or a combination thereof, which would be 
excessive in relation to the concrete and direct military advantage anticipated. 101 

Sub-section (b) above is a codification of long-standing customary law. 
Article 51(6) provides in comprehensive terms that attacks "against the 
civilian population or civilians by way of reprisals are prohibited," 
supplementing the prohibition on reprisals against protected civilian persons 
in Geneva Convention IV for the Protection of Civilian Persons in Time of 
War. 102 Article 54(1) of the Protocol states: "Starvation of civilians as a 
method of warfare is prohibited." This appears to prohibit the comprehensive 
economic blockades imposed by the major Allied naval powers in both World 
Wars because one of the principal effects of such blockades was the starvation 
of civilians. A question of fact arises as to what extent particular segments 
of the civilian population are incorporated into the war effort. 

Articles 21-31 concern medical transportation. Article 22 provides a more 
comprehensive protection for hospital ships and coastal rescue craft than that 
provided in Geneva Convention II. For example, this article extends the 
protections of Convention II beyond hospital ships provided by a party to 
the conflict to also include hospital ships provided by a neutral or other state 
which is not a party to the conflict or by an impartial international 
humanitarian organization. The most obvious example of the latter category 
is the International Committee of the Red Cross. Article 23 provides 
protection to medical ships and craft whether they are located "at sea or in 
other waters," thereby covering territorial waters and internal waters such 
as ports, lakes and rivers. 

V. The Application of the Law of Targeting to 
Selected Situations Since 1945 

A. The Korean Armed Conflict 

The naval aspects of the Korean conflict were characterized by the 
overwhelming superiority of the United Nations naval forces. 103 The 
operational command at sea was exercised by the Commander of the U.S. 
Seventh Fleet and comprised ships and aircraft of the United States Navy, 
British Commonwealth navies, and several allied navies. The exercise of 



S.V. Mallison and W.T. Mallison 261 

complete control of the seas made it possible to conduct a close-in naval 
blockade of the Korean coasts which was similar to the blockades in use in 
the nineteenth century. The North Korean government had no significant 
naval forces and there was no evidence of successful attempts to breach the 
blockade. Operational plans provided for the use of visit and search of any 
enemy or neutral vessels which were encountered. The intercepted vessels 
consisted largely of North Korea deep-sea fishing vessels equipped with radio 
transmitters and receivers. There was evidence that a number of these vessels 
were employed to obtain intelligence concerning the location and disposition 
of warships under the United Nations Command. These vessels were captured 
and where appropriate, their crews were made prisoners of war. None of 
them was entitled to status as immunized objects under the holding in The 
Paquete Habana m concerning the immunity of small coastal fishing boats which 
were not involved in the enemy armed conflict effort. 

Fish was a main staple of the Korean diet, particularly for coastal villages, 
in both the north and the south. It was decided, nevertheless, that fish would 
be declared contraband and that the elimination of even coastal fishing would 
add to the enemy logistic problems and provide an inducement to turn civilians 
against the North Korean regime. Leaflets in the Korean language with the 
following text were made available to as many North Korean fishermen as 
could be reached in September 1950: 

The Communists brought this terrible war down upon you. You cannot fish from your 
boats until the Communists are killed or thrown out. The United Nations Forces are 
human and do not desire to harm innocent victims of the war, but if you try to fish 
again before the Communists are completely defeated, you must suffer the consequences. 
A legal blockade has been declared and is enforced by United Nations Forces. 105 

When fishing was attempted thereafter, coastal boats were confiscated, and 
in some instances destroyed, and the fishermen were returned to the beach. 
No evidence was produced which indicated that North Korean military forces 
suffered significant logistical harm as the result of the ban on fishing. In 
contrast, there is evidence that North Korean fishing villages were reduced 
to starvation. Apparently, some of the fishermen were so desperate that they 
were reduced to attempting to spear fish in shallow water. 106 There is no doubt 
that this ban constituted a violation of the customary law immunizing coastal 
fishing boats enunciated in The Paquete Habana and codified in Hague 
Convention XI Relative to Certain Restrictions with Regard to the Exercise 
of the Right of Capture in Naval War (1907). 107 

Shore bombardment and aerial bombing in support of United States and 
allied land forces were conducted in the same way that the U.S. Pacific Fleet 
operated during the Second World War. 108 In any area where civilian persons 
and objects were present, every effort was made to confine the bombardment 
to military targets. An example concerning the bombardment at Inchon prior 
to and during the famous amphibious landing behind enemy lines which 



262 Law of Naval Operations 

changed the course of the conflict was provided by the orders of Commander, 
Seventh Fleet: 

Vice Admiral Struble's orders to the bombardment forces clearly specified that there 
should be no promiscuous firing at the city itself or at civilian installations. To achieve 
this, the entire objective area had been divided [in target area maps] into 60 sub-areas. 
Known military targets had been previously assigned, and those which offered the 
greatest potential hazard to our landing forces were circled in red. It had been agreed 
that any ship could fire into a red circle area with or without a "spot" [by observer 
aircraft]. In the uncircled areas, however, firing was permitted only if definite targets 
were found and an air spot was available. This differentiation between types of areas 
was adopted to reduce destruction of non-military targets to a minimum, to save the 
city of Inchon for occupation forces, and to avoid injury to civilian personnel. 109 

There is substantial evidence that this same systematic distinction between 
civilians and civilian objects and military personnel and objects was made 
when the bombardment objectives were located in North Korea in proximity 
to civilians there. The result was that shore bombardment was conducted in 
substantial compliance with Hague Convention IX Concerning Bombard- 
ment by Naval Forces (1907). 110 

B. The Cuban Missile Crisis: Self-Defense and Targeting 

The issue of the lawfulness of naval targeting is usually considered apart 
from the issue of self-defense or aggression in situations of ongoing armed 
conflict. Where there is no ongoing armed conflict, it is necessary to comply 
with the international law of self-defense in order to provide authority for 
the use of naval targeting. There are three indispensable requirements to 
justify in law military measures involving naval targeting which are based 
upon a claim of self-defense. 111 They are: (1) A good faith attempt to use 
peaceful procedures; (2) actual necessity (as opposed to a sham or pretense) 
in the context of either an existing armed aggression or a threat of armed 
aggression against the defending state which is both credible and imminent; 
and (3) proportionality in responding defensive measures. The elements of 
these requirements, which were developed over a long period of time in 
customary international law, are now codified in the United Nations Charter, 
a treaty of the United States. 

Article 2(3) of the Charter provides: 

All Members shall settle their international disputes by peaceful means in such a manner 
that international peace and security, and justice, are not endangered. 

Article 2(4) provides: 

All Members shall refrain in their international relations from the threat or use of force 
against the territorial integrity or political independence of any state, or in any other 
manner inconsistent with the purposes of the United Nations. 

The complementary article 51 provides in relevant part: 



S.V. Mallison and W.T. Mallison 263 

Nothing in the present Charter shall impair the inherent right of individual or collective 
self-defense if an armed attack occurs. . . . 

The "inherent right," which is the customary law, requires both actual 
necessity for and proportionality in responding defensive measures. The 
English language text of article 51 is neither well-drafted nor consistent with 
the negotiating history at the San Francisco Conference which reveals that 
reasonable and necessary anticipatory self-defense was retained and that self- 
defense is not limited only to the situation of an "armed attack. " The wording 
cannot be read as if it stated: "if, and only if, an armed attack occurs." The 
more carefully drafted and equally authentic French text of article 51 uses 
the term "aggression armee" which includes, but is not limited to, armed 
attack, and this is consistent with the negotiating history. The view of 
Committee I at San Francisco that article 2(4) does not impair the customary 
law of self-defense is set forth in the words of its rapporteur, "The use of 
arms in legitimate self-defense remains admitted and unimpaired." 112 The 
words "inherent right" in the English text refer to the preexisting customary 
law and, therefore, include anticipatory self-defense. Because the doctrines 
concerning anticipatory self-defense may be even more subject to abuse than 
the doctrines concerning an existing armed aggression, the three criteria are 
applied with greater stringency where anticipatory self-defense is claimed. 113 

A preeminent example of the application of these principles is the famous 
Caroline incident of 1837 which involved a river steamer of that name employed 
by U.S. nationals to aid the rebels in the then civil war in Canada. 114 The 
British Government (then the sovereign in Canada) had attempted 
unsuccessfully to have the U.S. Government prevent assistance to the rebels. 
Thereafter, Canadian troops came into United States territory and destroyed 
the Caroline to prevent its imminent further use. The British Government 
claimed reasonable and necessary anticipatory self-defense. The diplomatic 
exchange is best known for Secretary of State Webster's formulation of the 
requirements of self-defense as involving a "necessity of that self-defense 
[which] is instant, overwhelming, and leaving no choice of means, and no 
moment for deliberation." 115 This statement is too restrictive since a credible 
threat may be imminent without being "instant" and more than a "moment 
for deliberation" is required to make a lawful choice of means. The most 
important of Mr. Webster's words carefully specified the requirements of 
proportionality as follows: 

[N]othing unreasonable or excessive [is permitted], since the act justified by the necessity 
of self-defense, must be limited by that necessity and kept clearly within it. 116 

The legal significance of the Caroline incident is that it illustrates compliance 
with the three requirements of international law. The British attempted to 
use peaceful procedures, were confronted with an imminent danger of attack, 



264 Law of Naval Operations 

and employed coercion in response which was strictly proportional, and the 
incident was resolved on this basis. 

On October 16, 1962 President Kennedy received the "first preliminary 
hard information" showing the establishment of missile bases with an 
offensive targeting capability in Cuba. 117 Aerial surveillance of Cuba was 
increased and conclusive photographic evidence of the inter-continental 
capability of the emplacements was obtained in the next few days. On October 
18, 1962, Soviet Foreign Minister Gromyko visited the President and assured 
him that Soviet assistance to Cuba "pursued solely the purpose of contributing 
to the defense capabilities of Cuba." 

President Kennedy and his advisers met in a group that subsequently became 
known as the "Executive Committee." A wide range of responses, from so- 
called "pin-point bombing" and invasion to doing nothing, was considered. 
Because there was no Soviet armed attack, lesser military responses were 
considered with full realization that if they were ineffective, more coercive 
uses of military power including naval targeting would be employed. 

In the decade of the 1950s, much emphasis was placed upon plans involving 
"massive retaliation" with nuclear weapons or, as it was put informally, "a 
bigger bang for a buck." In contrast, some naval officers and civilians at the 
Naval War College in Newport and in the Navy Department in Washington 
continued to manifest an interest in limited uses of naval power. Among them 
was Rear Admiral Robert D. Powers, USN, who in 1958 wrote an influential 
article in the Naval Institute Proceedings entitled "Blockade: For Winning 
Without Killing." 118 The article emphasized the potential uses in the nuclear 
age of a limited naval blockade with characteristics quite different from the 
comprehensive economic blockades conducted successfully by the Allied 
powers in two World Wars. In October 1962, when Admiral Powers was 
serving as the Deputy Judge Advocate General of the Navy, he wrote the 
initial draft o{ a proposal for a limited naval blockade of Cuba to interdict 
further missiles and components and to remove the existing ones. Following 
consultations with Rear Admiral Mott, the Navy JAG, Admiral Anderson, 
the Chief of Naval Operations, and General Maxwell Taylor, the Chairman 
of the Joint Chiefs of Staff, some changes were made in the draft and General 
Taylor took it to the "Executive Committee" where it was considered along 
with other recommendations in formulating the President's proclamation of 
October 23 entitled "Interdiction of the Delivery of Offensive Weapons to 
Cuba." 119 In the text, as in the title, the term "blockade" was avoided so 
that there could be no confusion between the limited measures taken and the 
comprehensive economic blockades of the World Wars. The effectuation of 
the quarantine-interdiction, nevertheless, involved a limited naval blockade 
with offensive missiles having nuclear capability and inter-continental range 
classified as "prohibited material" which was functionally equivalent to 
contraband. 



S.V. Mallison and W.T. Mallison 265 

The President announced the measures to be taken in a radio and television 
address on October 22 which, in substance, made a claim of necessary and 
reasonable anticipatory national self-defense. On October 23 the prevailing 
opinion in the United Nations Security Council, which was initially skeptical 
about the factual claims made by the United States, changed drastically with 
the circulation by Ambassador Stevenson of copies of the aerial photographs 
showing the clandestinely established missile launching sites in Cuba. Also 
on October 23 the Organ of Consultation of the Organization of American 
States made the claim of anticipatory collective self-defense. Beginning on 
October 24, the ships carrying further offensive weapons to Cuba turned back 
rather than encounter the blockading naval forces. What had appeared at 
times to be a potential nuclear confrontation between the United States and 
the Soviet Union was resolved by the Kennedy-Kruschev Agreement which 
resulted in the removal of the existing missile emplacements. 120 

The United States' responding measures in the Cuban Missile Crisis met 
each of the legal requirements for anticipatory self-defense. In view of the 
misleading statements made to the President by Soviet Foreign Minister 
Gromyko, it was deemed that the requirement of attempted peaceful 
procedures had been met and that it was futile to attempt further 
communications on the subject at that time. The drastic change in the nuclear 
balance of forces which would have resulted from the emplacement of Soviet 
missiles with nuclear capability in Cuba constituted the most serious kind of 
imminent danger to the United States and the Western Hemisphere. The 
character of the danger required that action be taken before the missiles were 
armed and operational. If delay had taken place until the missiles could be 
fired or used as the basis for "nuclear blackmail," it would have been too 
late. For these reasons, the requirement of an actual and imminent danger 
was met. The limited naval blockade amounted to the least possible use of 
military force in response and easily met the requirement of proportionality. 

The operational planning for the limited naval blockade of Cuba included 
consideration of the lawful objects of naval targeting and the methods which 
should be employed against them. If the ships carrying further offensive 
weapons had not turned back on October 24, the contingency plans would 
have been acted on and the traditional procedures applicable to ships 
attempting to breach a blockade would have been used. The penultimate 
paragraph of the Presidential Proclamation provided: 

Any vessel or craft which may be proceeding toward Cuba may be intercepted and 
may be directed to identify itself, its cargo, equipment and stores, and its ports of call, 
to stop, to lie to, to submit to visit and search, or to proceed as directed. Any vessel 
or craft which fails or refuses to respond to or comply with directions shall be subject 
to being taken into custody. 121 

The ultimate sanction was reserved for ships which refused to submit to 
visit and search or attempted to run the blockade. Such ships would have 



266 Law of Naval Operations 

become lawful objects of attack and after failure to respond to warning could 
be sunk by naval gunfire. The final paragraph of the Presidential Proclamation 
stated: 

In carrying out this order, force shall not be used except in case of failure or refusal 
to comply with directions, or with regulations or directives of the Secretary of Defense 
issued hereunder, after reasonable efforts have been made to communicate them to the 
vessel or craft, or in case of self-defense. In any case, force shall be used only to the 
extent necessary. 122 

The Cuban Missile Crisis, in addition to providing a modern model of the 
criteria for lawful anticipatory national and collective self-defense, illustrates 
the flexibility of naval force in achieving national objectives without the 
destruction of human or material values through its presence at the blockade 
line and without employing the full range of coercive measures which it 
possesses. The compliance with the international law criteria of self-defense 
provided legal authority for the use of the blockade and the necessary measures 
of naval coercion to enforce it. 

C. The Attack on the 17.5.5. Liberty 

The 1967 attack on the Liberty has been summarized as follows: 

At 1403 on Thursday, 8 June 1967 the U.S. electronics intelligence ship Liberty (AGTR 
5) was steaming at a leisurely five knots, 14 miles offshore from the Egyptian town 
of El Arish on the Mediterranean coast of Sinai, when she was attacked by Israeli fighter- 
bombers. The attack continued for seven minutes, leaving eight of the ship's crew dead 
or dying, more than 100 wounded, and the ship riddled and burning. 

Fourteen minutes later, the Liberty was attacked by three Israeli torpedo boats which 
raked the ship with gunfire — killing another four men — and then launched torpedoes. 
One torpedo hit a communications compartment, multiplying the Liberty's dead to a 
total of 34. Within 30 minutes of the torpedo attack, two helicopters carrying armed 
troops appeared alongside, and two jet fighters loitered in the sky astern as if poised 
for strikes. As suddenly as it had started, everything stopped. Israel said it was a 
"mistake." 123 

It should be added that the attacks took place on a sunny day in international 
waters following a long period of Israeli aerial surveillance of the vessel. 124 
The Liberty's flag at the mainmast was clearly visible and its white hull 
identification markings as well as its physical appearance made it very 
different from any Egyptian warship or Egyptian flag merchant ship. 
Following the torpedo attack, life rafts were dropped over the side of the 
ship, secured by a heavy line so that they would be available readily in case 
the order to abandon ship had to be given. The torpedo boats attacked the 
life rafts with gunfire, sinking two and cutting the line on the third. The 
Israeli torpedo boats then sped away taking the third life raft with them. 

There are two inescapable conclusions which follow from the facts involved 
in the attack. First, the facts show that the attack was deliberate. The 
Government of Israel offered a number of unpersuasive excuses for the attack 
including that the ship was mistaken for the Egyptian naval coastal transport 



S.V. Mallison and W.T. Mallison 267 

El Quseir which was a ship half the size of the Liberty and of distinctly different 
appearance. The six hours of close-in aerial surveillance of the ship prior to 
the initial aerial attack combined with the ideal visual conditions rule out 
the possibility of a mistake. 125 

The second necessary conclusion is that the law applicable to objects of 
attack was violated. The Liberty was a neutral ship sailing in international 
waters and it was apparent that it was not participating directly or indirectly 
in any belligerent state's naval war effort. As such, it was a ship lawfully 
immune from attack. In addition, the life rafts would have been illegal objects 
of attack in any circumstances. The attack on the life rafts, which was the 
last attack when the Liberty was afire and listing heavily, was a violation of 
the Geneva Convention II for the Amelioration of the Condition of Wounded, 
Sick, and Shipwrecked Members of Armed Forces at Sea of 1949. 126 Whatever 
the Israeli motivation for the attack may have been, the conclusion of its 
illegality remains. 127 

D. The Vietnam Armed Conflict 

One of the problems confronted by the government of the Republic of 
Vietnam (South Vietnam) in the course of the ongoing hostilities in 1965 was 
the infiltration by small craft of enemy weapons and supplies through its 
territorial and contiguous waters. Operation Market Time, a cooperative 
endeavor of the U.S. Navy and the South Vietnam Navy, was designed to 
provide surveillance and inspection to prevent such infiltration in the three- 
mile territorial sea and in a nine-mile contiguous zone. 128 The time-honored 
procedures of visit and search were employed. Gunfire from naval vessels 
was the ultimate sanction, but it was not employed unless visit and search 
was resisted. 129 Because the operation was conducted within territorial waters 
where sovereign authority existed and within a reasonable contiguous zone, 
there was no conflict with international law. The measures employed were 
an aspect of the overall South Vietnamese claim to self-defense and the only 
objects of attack were lawful since they were limited to craft participating 
in the enemy war effort and resisting visit and search. 

By 1972 most of the United States Army and Marine Corps forces had been 
withdrawn from Vietnam. In late March and early April of that year, the 
Democratic Republic of Vietnam (North Vietnam) launched a major attack 
across the "Demilitarized Zone" into South Vietnam. The U.S. Government 
responded with air attacks and a mining campaign directed against the port 
of Haiphong and other North Vietnamese ports. 130 The great majority of 
weapons and other military supplies imported by North Vietnam arrived by 
sea, and about 40 cargo ships called at these ports each month. President Nixon 
announced the mining May 8, 1972. Thereafter, it was announced that the 
ports, including internal and territorial waters, would be mined commencing 
at 0900 Saigon time on May 9 and that the mines were set to activate 



268 Law of Naval Operations 

automatically at 1800 hours Saigon time on May 11. This was done to permit 
vessels then in North Vietnamese ports ample time to depart before the mines 
were activated. The mines were laid by aircraft from U.S. Navy carriers and 
the interdiction resulted in no foreign merchant ships being sunk. Even though 
the United States did not use the blockade terminology, the mining campaign 
complied with the historic criteria for a close-in blockade. The announcement 
of the mining was widely publicized so that neutrals were informed in 
advance. It was limited to North Vietnam and did not block access to neutral 
ports. The blockade appears to have been effective and easily met the criteria 
of the Declaration of Paris that a blockade "must be effective, that is to say 
maintained by a force sufficient really to prevent access to the coast of the 
enemy." 131 In addition, the mines were passive weapons and no ship was made 
an object of attack unless it activated the mines by entering or leaving one 
of the North Vietnamese ports. In comparison with the aerial bombing 
campaign where military objects were attacked with the possibility of 
ancillary civilian destruction, 132 the mining was a very restrained response 
to the North Vietnamese attack. 133 For all of these reasons, the mining 
complied with both the historic and contemporary criteria of international 
law concerning objects of attack. 

The available evidence indicates that the U.S. Navy conducted shore 
bombardment of military objectives under the same limitations which were 
observed during the Korean conflict. 134 The bombardment was sometimes 
conducted in support of United States and South Vietnamese ground force 
operations. The objects of attack were lawful for the same reasons that the 
objects of attack were lawful in the shore bombardments during the Korean 
conflict. 135 

E. The Falklands/Malvinas Armed Conflict 

Following the Argentinian invasion and conquest of the Falklands/Malvinas 
Islands in early April 1982 (which was accomplished without bloodshed due 
to the Argentine avoidance of civilian casualties), Great Britain sent a naval 
task force to regain the islands. 136 The task force was comprised of two small 
aircraft carriers with V/STOL (vertical short take off and landing) aircraft, 
five nuclear-powered attack submarines, eight guided missile destroyers, 
fifteen general purpose frigates, and a number of smaller combatant vessels 
including minesweepers and landing craft. The task force also contained 
several Royal Fleet Auxiliaries and a number of requisitioned commercial 
vessels including the liners Canberra and Queen Elizabeth II, used as troop 
transports, and the liner Uganda, used as a hospital ship. The entire task force, 
except for the Uganda which was not made an object of attack by Argentina, 137 
consisted of vessels which were lawful objects of attack. Argentine Air Force 
and Navy aircraft inflicted substantial damage on ships o( the task force and 
sank the destroyers Sheffield and Coventry, the frigates Antelope and Ardent, and 



S.V. Mallison and W.T. Mallison 269 

the landing craft Sir Galahad. 13 * An aircraft-launched missile, apparently 
intended for one of the British aircraft carriers, sank the merchant ship Atlantic 
Conveyor which had participated in the naval war effort by carrying a cargo 
of helicopters and other military equipment. 

On May 1 the nuclear submarine HMS Conqueror shadowed an Argentine 
Navy task force consisting of the large light cruiser General Belgrano 139 and 
two destroyers equipped with Exocet anti-ship missiles. The task force was 
operating south of a British exclusion zone of April 12 which covered a circle 
from the center of the islands with a 200 mile radius. On May 2 the Conqueror 
received permission from the British Cabinet to attack and it sank the Belgrano 
with two torpedoes, causing the death of more than 300 members of the 
crew. 140 There can be no doubt but that this was the sinking of a lawful object 
of attack. The British maritime exclusion zone was, however, interpreted 
by some as not extending to objects of attack outside of the zone. 141 The 
apparent outcome was a British naval victory followed by a substantial 
political defeat in world public opinion. After the sinking of the Belgrano, 
Argentine surface combatants remained within the Argentine territorial and 
internal waters. 

On June 6 the U.S. Maritime Administration informed both Great Britain 
and Argentina of a list of United States flag vessels and United States interest 
vessels (owned by U.S. nationals but flying a foreign flag of convenience) 
traversing the South Atlantic to ensure that these neutral vessels would not 
be attacked. The U.S. interest Liberian flag tanker Hercules was sailing from 
the East Coast of the United States to Alaska via Cape Horn. 142 On June 8, 
when it was approximately 600 nautical miles off the Argentine coast and 
500 miles from the Falkland Islands, it was attacked by Argentine aircraft 
in three different strikes using bombs and air-to-surface rockets. It proceeded 
to Rio de Janeiro harbor and, following a survey by Brazilian Navy authorities 
who determined that the damage was extensive and that unexploded bombs 
could not be removed safely, it was taken out to deep water and sunk. As 
a neutral vessel not participating in the British naval effort, the Hercules was 
clearly not a lawful object of attack. Following the refusal of the Government 
of Argentina to pay compensation, the owner brought an unsuccessful suit 
against that country under the Federal Alien Tort Act in the United States. 143 

F. The Iran-Iraq Armed Conflict 

The Iranian war effort was supported financially almost entirely by the 
export of its oil. 144 The "Tanker War" of 1980-1988 was carried on by Iraq 
exclusively through air attacks, and the targets of the substantial majority 
of Iraqi attacks were tankers transporting Iranian oil. Both Iran and Iraq 
proclaimed exclusion zones in which shipping was subject to attack. 
Approximately one half of the Iraqi attacks were within the Iraqi prescribed 
exclusion zones, and the other half were within the Iranian exclusion zone. 145 



270 Law of Naval Operations 

The available information indicates that most of the Iraqi attacks were not 
preceded by visual identification of the target. Apparently Iraqi Air Force 
planes targeted radar location of ships on the assumption that such 
identification of targets within one of the exclusion zones must be a tanker 
carrying Iranian oil or a tanker in ballast which was scheduled to take on 
Iranian oil. Because of the location of the targets in the exclusion zones and 
the usual absence of immune vessels from such zones, the Iraqi attacks cannot 
be appraised as indiscriminate even though carried out without visual 
identification. 

The lack of visual identification was a cause of the Iraqi accidental attack 
on the guided-missile frigate U.S.S. Stark (FFG-31) on May 17, 1987, in 
international waters outside of any of the exclusion zones. 146 The air-to- 
surface missiles struck the ship, killing 37 crew members and wounding a 
substantial number of others. Published reports indicate that the Stark 
personnel and equipment were not ready to defend the ship even though the 
attacking aircraft was identified before the missiles were fired. Efficient 
damage control procedures prevented the Stark from sinking. It is apparent 
that the Stark, as a neutral warship in international waters, was not a lawful 
object of attack and the Iraqi Government apologized, assumed full 
responsibility, and agreed to pay damages. 

The analysis of the lawfulness of the Iraqi air attacks is clearly applicable 
to the targeting of Iranian flag tankers. In addition, a general rule is that 
neutral ships acquire the character of an enemy merchant vessel when they 
are participating directly or indirectly in the enemy war effort. 147 
Consequently, neutral flag tankers involved in the export of Iranian oil were 
equally lawful objects of attack by the Iraqi Air Force. Iran could not lawfully 
immunize its export of oil from attack by simply placing it on neutral ships. 

Early in the war, Iranian air attacks knocked out Iraqi oil terminals in the 
Gulf and effectively prevented access to Iraqi ports. Thereafter, Iraq exported 
its oil overland by pipeline and received some of its war sustaining material 
through Kuwaiti and Saudi ports. 148 The six neutral states which comprised 
the Gulf Cooperation Council were increasingly concerned about the Iranian 
attacks on neutral shipping. In partial response to this concern, the United 
Nations Security Council adopted Resolution 552 on June 1 , 1984. It reaffirmed 
"the right of free passage in international waters and sea lanes for shipping 
en route to and from all ports and installations of the littoral States that are 
not parties to the hostilities," condemned the Iranian attacks on "commercial 
ships en route to and from the ports of Kuwait and Saudi Arabia," demanded 
that such attacks "cease forthwith," and that there "be no interference with 
ships en route to and from States that are not parties to the hostilities." This 
amounts to a clear statement of the right of neutral shipping to be free from 
attack in international waters. The Security Council took this position even 
though the facts showed that both Kuwait and Saudi Arabia were providing 



S.V. MalNson and W.T. Mallison 271 

significant assistance to the Iraqi war effort by the overland transport of 
supplies and in other ways. The Council apparently was convinced that, on 
balance, the Gulf Cooperation Council states and their shipping retained 
neutral status. This decision seems to have been influenced by the fact that 
the neutral ships of the Gulf Cooperation Council states, including the 
Kuwaiti reflagged tankers, were not engaged in assisting the Iraqi war effort 
by carrying Iraqi oil. It should be added that Resolution 552 does not condemn 
the Iraqi attacks. 

Iran's air and surface attacks on shipping typically followed visual 
identification. The selected targets were indiscriminate in that they included 
unlawful attacks on ships engaged in genuine inter-neutral trade. Some of 
the targets selected were ships carrying Iraqi war-sustaining material to 
Kuwaiti or Saudi ports for overland transport to Iraq. While the attacks 
caused damage to ships and personnel, they did not usually bring about sinkings 
because of the lack of efficient anti-ship missiles. 149 Although Iran had 
sufficient surface combatant ships to conduct visit and search, there is no 
evidence that it did so on a regular basis. Consequently, the contraband or 
immune character of particular cargoes was usually unknown to Iranian 
attackers. Iran claimed that its actions were in reprisal to the Iraqi attacks, 
but since these Iraqi attacks were lawful, there is no basis for the claim. The 
indiscriminate Iranian attacks must be appraised as unlawful. 

Iran also laid moored mines, many of which broke their cables, in the 
international waters of the Gulf. Unlike the mining of North Vietnamese 
ports, where the location of the mines in territorial and internal waters and 
the notice to neutral shipping resulted in no damage to neutral ships, the 
Iranian mining was not announced and was apparently directed at neutral 
shipping. 150 This unlawful activity was substantially curtailed following the 
United States helicopter attack and capture of the Iranian minelayer Iran Ajr 
on September 21, 1987. 151 The minelaying was taking place about 50 miles 
northeast of Bahrain in an area used by ships before moving to oil-loading 
terminals. 

The U.S. Middle East Force which had previously consisted of only three 
to five ships was substantially augmented during 1987. 152 In early 1987 the 
Government of Kuwait was increasingly concerned about Iranian attacks on 
tankers transporting Kuwaiti oil and it approached both the Soviet Union 
and the United States for assistance. Kuwait chartered three Soviet-flag long- 
hull tankers. 153 In May of the same year the Kuwaiti and United States 
Governments agreed that the United States would reflag eleven Kuwaiti 
tankers consistent with recognized international legal procedures. 154 The plans 
and procedures for U.S. Navy escort of these neutral tankers were agreed 
upon by the Middle East Force and the Kuwaiti Oil Tanker Company. In 
the initial convoy of reflagged tankers in July 1987, the lead tanker, the 401,382 
ton Bridgeton struck a mine. 155 It successfully completed the voyage at reduced 



272 Law of Naval Operations 

speed, although it was subsequently out of use for several months while the 
damage was repaired. Since the hull of the Bridgeton was substantially thicker 
than the hulls of the escorting warships, its master recommended that the 
escorts fall in astern of his ship, which they did. 156 The Bridgeton as a neutral 
tanker not participating in the war effort of either belligerent, was an 
unlawful object of attack. 

A number of small Iranian combatant vessels became lawful objects of 
attack by approaching the neutral vessels convoyed by the U.S. Navy in a 
hostile manner and were driven off or sunk by U.S. Navy vessels or 
helicopters. Meanwhile, because of the danger to other neutral shipping, 
including attacks by small Iranian combatant vessels using machine guns and 
rocket-propelled grenades, the British, French, Italian, Dutch and Belgian 
navies sent a number of small combatant vessels, including minesweepers, to 
the Gulf and escorted neutral vessels under their flags. 157 

On October 16, 1987, the U.S.-reflagged former Kuwaiti tanker Sea Isle 
City located about ten miles off Mina al-Ahmadi was hit and damaged by 
a Silkworm missile fired by Iran from Fao Peninsula with the result of damage 
to the ship and injuries to personnel. 158 Three days later the U.S. Navy shelled 
and blew up an Iranian oil platform east of Bahrain and destroyed the 
electronic equipment on a nearby platform. Prior to the shelling, the United 
States gave notice of the impending action so that personnel would have the 
opportunity to evacuate the platforms, and it was believed that they did so. 
This attack on what was considered a lawful target was a limited and 
proportionate response to the attack on the Sea Island City. It should be added 
that there were no further attacks using Silkworm missiles on U.S. flagged 
vessels. 

G. The April 1986 Attack on Libya: Self-Defense and Targeting 

Authors' note: 

This section was written based on the best information the authors were able to obtain 
from the available unclassified sources. They have been reliably informed that there 
is also classified material which contributed to the decisions made and actions taken 
in the planning and carrying out of this attack. Neither of the authors has access to 
such information and such access would not be consistent with their independent 
professional work. The present analysis emphasizes the law applicable to targeting. 

The Reagan Administration claimed that the attacks on Benghazi and 
Tripoli on April 15, 1986 (April 14, Washington, D.C. time), were justified 
on the basis of self-defense. It is therefore necessary to apply the international 
law of self-defense (as in the analysis of the Cuban Missile Crisis) and other 
possible legal grounds for the attack to the events. The law of targeting will 
then be applied to determine the compliance with its requirements by the 
U.S. Navy and Air Force in the attack. The factual background which will 
be examined initially is essential to an understanding of the law. 



S.V. Mallison and W.T. Mallison 273 

1. The Factual Background 

Attacks took place at the El Al Israel airline counters in the Rome and 
Vienna airports on December 27, 1985, resulting in 19 civilian casualties 
including five United States nationals, and among them, Natasha Simpson, 
an 11 year old girl. 159 President Reagan commented on those grim events in 
the opening statement at his press conference on January 7, 1986: 

It's clear that the responsibility for these latest attacks lies squarely with the terrorist 
known as Abu Nidal and his organization. . . . But these murderers could not carry 
out their crimes without the sanctuary and support provided by regimes such as Col. 
Qadhafi's in Libya. Qadhafi's longstanding involvement in terrorism is well- 
documented, and there's irrefutable evidence of his role in these attacks. . . . By 
providing material support to terrorist groups which attack U.S. citizens, Libya has 
engaged in armed aggression against the United States under established principles of 
international law, just as if he [sic] had used its own armed forces. 160 

In response to a question at the press conference, the President stated, inter 
alia, "I can assure you that we have the evidence. . . . Abu Nidal has more 
or less moved his headquarters there into Libya." 161 The President issued an 
Executive Order on the same day, which stated: 

I, RONALD REAGAN, President of the United States of America, find that the policies 
and actions of the Government of Libya constitute an unusual and extraordinary threat 
to the national security and foreign policy of the United States and hereby declare a 
national emergency to deal with that threat. . . . 162 

Secretary of State Schultz' address to the National Defense University on 
January 15, 1986, considered recent episodes of terrorism under the title, 
"Low-Intensity Warfare: The Challenge of Ambiguity." 163 He recommended 
military responses to such "warfare" conducted against the United States 
while pointing out, "The law requires that such actions be necessary and 
proportionate. " 164 Apparently the Libyan connection with the airport murders 
was that some of the perpetrators carried passports which had belonged to 
Tunisians who had worked in Libya. 165 This information is equivocal and 
consequently may or may not indicate Libyan support for these terrorist 
actions. Professor Richard E. Rubenstein, in his study of contemporary 
terrorism, states: 

In fact, no evidence demonstrating Libyan complicity in these attacks was ever produced. 
Calling this episode of terrorism "war" was primarily a frustrated response, signifying 
acceptance of the principle of collective responsibility: if we cannot find and punish 
the perpetrators, we will punish their suppliers and sympathizers. . . . Militarily, it 
reflects the questionable premise that drying up the terrorists' external sources of supply 
will terminate their activities. Morally, it is intended to justify retaliation in which 
innocent civilians get hurt. And politically, it ends the search for indigenous social causes 
of terrorism, preferring to view local violence as a product of policies formulated in 
some foreign capital. 166 

While it is very important to search for, identify and attempt to ameliorate 
or correct the "indigenous social causes of terrorism," the role of the suppliers 
of terrorism should not be overlooked. On February 8, 1988, The Washington 



274 Law of Naval Operations 

Post reported an interview with Qaddafi by Katherine Graham, chairman of 
The Washington Post Company, and correspondents of the Post and Newsweek 
under the headline, "Gadhafi: Terrorism is Response to U.S. Policies." 167 The 
article stated, inter alia: 

Asked about Libyan involvement in supplying weapons to groups that carry out 
terrorist actions, Gadhafi did not directly deny such involvement but appeared to defend 
it on the grounds that it balanced U.S. intervention elsewhere: 

"Why is Reagan involved with the contras in Nicaragua, with UNITA in Angola, 
with Afghanistan? This is the same question. Let's all agree that everyone concern 
himself only with things in his own borders." 168 

It is also significant that the political causes of terrorism in the Middle East 
include the United States Government's comprehensive military and 
economic support for the State of Israel. 169 

The Gulf of Sidra is bounded by Libyan territory except for an opening 
to the Mediterranean on the north which is approximately ten times the width 
of the opening permitted for a "juridical bay" (24 nautical miles or less) under 
the jurisdiction of the adjoining state. 170 The Government of Libya has, 
nevertheless, claimed that the Gulf of Sidra is a part of its internal waters, 
and its principal domestic airline traverses the northern part of the Gulf 
between the two largest Libyan cities, Benghazi and Tripoli. Freedom of the 
seas in the Gulf of Sidra outside of the 12 mile limit has been successfully 
maintained for many years by diplomatic protest 171 and by task forces of small 
combatant vessels of the British, French and U.S. Navies. In contrast, from 
late January until late March 1986, a 30 ship task force of the U.S. Sixth Fleet 
conducted surface and aerial operations in and adjacent to the Gulf of Sidra. 
From March 23 until March 26 three carrier battle groups, the Coral Sea, the 
Saratoga, and the America, operated in the same area, sinking Libyan missile 
boats and downing Libyan fighter aircraft which were claimed to approach 
with "hostile intent." 172 The Reagan Administration claimed publicly that 
this was a routine maintenance of the right of freedom of navigation, but 
accounts in the media stated that it was privately conceded to include a 
possible provocation. For example, Messrs. Hoffman and Cannon, writing 
in The Washington Post on March 25, 1986 stated: 

Although the White House claimed yesterday that the purpose of the naval exercise 
was solely to demonstrate freedom of navigation in an international waterway, officials 
said privately that the exercise was planned with a realization that it might provoke 
a military confrontation with Qaddafi and a chance to underscore Reagan's 
determination to deal firmly with international terrorism. 173 

Previously the exercise of freedom of navigation in this area had not been 
provocative because it was maintained by small naval task forces. Such an 
exercise can become provocative, however, by using a larger force than that 
which is routine and necessary. 



S.V. Mallison and W.T. Mallison 275 

The bombing of the La Belle discotheque in West Berlin which followed 
on April 5, 1986, caused the immediate deaths of a U.S. Army enlisted man 
and a young Turkish woman and injury to many others including U.S. military 
personnel. On the evening of April 14, the White House issued a statement 
that "In light of this reprehensible act of violence and clear evidence that 
Libya is planning future attacks, the United States has chosen to exercise its 
right of self-defense." 174 In an address to the nation on the same evening, 
President Reagan stated: 

This monstrous brutality is but the latest act in Colonel Qadhafi's reign of terror. The 
evidence is now conclusive that the terrorist bombing of La Belle discotheque was 
planned and executed under the direct orders of the Libyan regime. . . . Our evidence 
is direct; it is precise; it is irrefutable. We have solid evidence about other attacks Qadhafi 
has planned against the U.S. installations and diplomats and even American 
tourists. . . . Self-defense is not only our right, it is our duty. . . . We Americans are 
slow to anger. We always seek peaceful avenues before resorting to the use of force — 
and we did. 175 

Seymour M. Hersh, an investigative reporter for the New York Times, wrote 
in February 1987: 

There was widespread concern and anger inside the National Security Agency over the 
Administration's handling of the Libyan messages intercepted immediately after the 
April 5 terrorist bombing of a West Berlin discotheque. The White House's reliance 
on these messages as "irrefutable" evidence that Libya was behind that bombing was 
immediately challenged by some allies, most notably West Germany. Some NSA experts 
now express similar doubts because the normal intelligence channels for translating and 
interpreting such messages were purposely bypassed. As of this month, the NSA's North 
African specialists had still not been shown these intercepts. 176 

As an example of doubts expressed in Western Europe, the German source, 
Der Spiegel, published an article in April 1986 entitled "A Complexity of 
Findings — Secret Service Dispute Over Libyan Radio Messages." The article 
stated that the "U.S. National Security Agency" and its German equivalent 
had reached opposite conclusions as to the meaning of the radio intercepts. 
One of its conclusions stated: 

Radio messages of such clarity which document a direct responsibility of the Libyan 
revolutionary leader Col. Muammar el Ghaddafi for the Berlin bombing were never 
recorded. 177 

Mr. Hersh, in the article quoted above, also stated: 

William J. Casey, then Director of Central Intelligence, personally served as the 
intelligence officer for a secret task force on Libya set up in mid-1981, and he provided 
intelligence that could not be confirmed by his subordinates. Some task force members 
suspected that much of Casey's information, linking Qaddafi to alleged "hit teams" that 
were said to be targeting President Reagan and other senior White House aides, was 
fabricated by him. 178 

In early 1986 a report, entitled Libya Under Qadhafi: A Pattern of Aggression 
and covering alleged Libyan terrorism through the December 1985 attacks 



276 Law of Naval Operations 

at the Rome and Vienna airports, set forth the State Department's 
understanding of the facts: 

The main targets of direct Libyan terrorist activities have been expatriate Libyan 
dissidents and leading officials of moderate Arab and African governments. 179 

The report also states that these attacks have taken place in many countries 
and that Libya has planned anti-exile attacks in the United States, but only 
one example is provided. 180 There is a "Chronology of Libyan Support for 
Terrorism 1980-85" 181 in the report which lists a total of 58 incidents, but only 
eight were alleged to involve direct action by Libya and of these none were 
stated to be directed against United States nationals. Two of the others 
referred to Libyan armed forces actions against Chad and one referred to 
the August 1981 incident in which two Libyan SU-22s were shot down by 
U.S. Navy aircraft. Some of the incidents appear to be based upon hearsay 
evidence which would not be admissible in a law court, although some are 
consistent with possible Libyan support for terrorism. A more recent State 
Department report issued in 1989 182 accuses Libya of "Reaching for 
Respectability" 183 and of conducting a "Drive for Influence," 184 but neither 
is in violation of international law and both are activities of most national 
states. The report contains a "Chronology of Libyan Support for Terrorism, 
1 986-1 988" 185 with many of the incidents reported stated to be "believed" or 
"suspected." Like the earlier report, this one contains some statements which 
are consistent with possible Libyan support for terrorism. 

In summary, the State Department reports fail to produce factual evidence 
of direct Libyan terrorism against United States nationals, and the information 
provided concerning Libyan support for terrorism is equivocal. Consequently, 
the Reagan Administration's claims against the Libyan Government are not 
substantiated by the State Department's reports. 

The Vice President's Report on combating terrorism issued in early 1986 
refers to "the uncovering of a pro-Qaddafi conspiracy to carry out three 
assassinations and to bomb strategic locations in the United States" 186 by the 
Federal Bureau of Investigation in 1985. The Report contains no details on 
this subject and the only other reference to Libya reports that Qaddafi stated 
that Libyans will attack "American citizens in their own streets." 187 If this 
were to happen, it would be within domestic jurisdiction and police power. 
Concerning international responses to terrorism, the Report states, inter alia: 

Political or economic sanctions directed against sponsoring states offer the least direct 
danger to lives and property and are more likely than military force to gain international 
support. 188 

The United States has used such economic sanctions against Libya and has 
applied the International Emergency Economic Powers Act. 189 

On April 14, 1986 the twelve ministers of foreign affairs of the European 
community issued an announcement at The Hague which stated, inter alia: 



S.V. Mallison and W.T. Mallison 277 

The Twelve have decided to act according to the following lines regarding Libya and, 
where necessary, regarding other states clearly implicated in supporting terrorism: 

— restrictions on the freedom of movement of diplomatic and consular personnel; 

— reduction of the staff of diplomatic and consular missions; 

— stricter visa requirements and procedures. 190 

The announcement added that no arms or other military equipment will be 
exported to Libya and that further measures will be considered as necessary. 
The Western Economic Summit meeting in Tokyo, May 4-6, 1986 issued 
"Declarations and statements by the seven Heads of State of Government 
and the representatives of the European Communities." 191 Concerning 
international terrorism, it was stated, inter alia: 

We specify the following as measures open to any government concerned to deny to 
international terrorists the opportunity and the means to carry out their aims, and to 
identify and deter those who perpetrate such terrorism. We have decided to apply these 
measures within the framework of international law and in our own jurisdictions in 
respect of any state which is clearly involved in sponsoring or supporting international 
terrorism, and in particular of Libya, until such time as the state concerned abandons 
its complicity in, or support for, such terrorism. 192 

The "measures" included refusal to export arms, strict limits on the size of 
diplomatic missions, denial of entry to suspected persons including diplomatic 
personnel, improved extradition procedures, stricter immigration and visa 
requirements, and close bilateral and multilateral cooperation. 

A negotiating history of the Tokyo Summit which appeared in the New 
York Times 193 stated that the specific mention of Libya was a last minute change 
inserted by the Summit leaders after the final draft declaration was presented 
to them. The European position was reported to be that terrorism could only 
be combatted effectively by understanding that it arose from legitimate 
political grievances but, nevertheless, the final text included the declaration 
that "terrorism has no justification." 194 An informal working paper stated 
to have been prepared by staff members of the United States delegation 
conceded that one thing which might well motivate other countries to fight 
terrorism "is the need to do something so that the crazy Americans won't 
take matters into their own hands again." 195 

Whatever the motivations, it is clear that the European community's 
official position is that state supported terrorism exists and that Libya is one 
offender. Nothing in the community's position, however, provides support 
for military as opposed to economic and diplomatic sanctions. The New York 
Times reported that President Reagan stated on April 21, 1986, that President 
Mitterrand of France privately suggested that the United States make an all- 
out military attack against Libya. 196 This is not consistent with the French 
President's public position denying overflight rights for the aircraft flying 
from the United Kingdom to Libya. Apparently the Reagan Administration 



278 Law of Naval Operations 

did plan a comprehensive military attack upon Libya to be effectuated in 
cooperation with Egypt. An article in The Washington Post of April 2, 1986, 
by Bob Woodward stated, under the headline "U.S. Unable to Persuade Egypt 
to Back Plan for Joint Anti-Qaddafi Move": 

Eight months of secret U.S. efforts to win Egyptian approval for a U.S. -Egyptian 
military operation designed to overthrow Libyan leader Muammar Qaddafi appear to 
have foundered following public disclosure and rejection of the plan by Cairo, informed 
sources said yesterday. 197 

2. Application of the International Law Requirements for Self- 
Defense 

The same three basic requirements considered in the analysis of the Cuban 
Missile Crisis are applicable. 198 They are: the use of peaceful procedures if 
possible; actual necessity for defense of the national state against an existing 
armed aggression or an imminent one; and proportionality in responding 
defensive measures. 

The media reported on the Libyan attempts to use peaceful procedures and 
the United States reaction. For example, two weeks before the U.S. bombing 
attacks, David H. Ottaway reported on the Libyan attempts to open 
diplomatic discussions with the U.S. Government: 

In advance of Vice President Bush's trip to Saudi Arabia, Libyan leader Muammar 
Qaddafi sent two emissaries to Riyadh in an apparent attempt once again to open a 
dialogue with Washington in the wake of the U.S. -Libyan confrontation last week in 
the Gulf of Sidra. 

Administration officials said they had no intention of responding to Qaddafi 's latest 
overture through the Saudis. They added that they have also rebuffed half a dozen other 
attempts by Libya to make contact with the United States through various European 
and Arab channels following the December 27 terrorist attacks on the Rome and Vienna 
airports. . . . 

The would-be European and Arab mediators, including King Fahd himself, were 
firmly told in January that the administration was not interested either in "a direct or 
indirect dialogue" with Qaddafi, according to the sources. 199 

The Ottaway article also reports: 

The administration has also told various would-be mediators that it is not interested 
in striking any "deal" with Qaddafi whereby the Libyan leader would promise to end 
terrorist attacks against U.S. interests in return for improved relations with the United 
States, the official said. . . . 

In addition to King Fahd, Qaddafi also tried in January to enlist the support of the 
leaders of Greece, Austria, Malta, Italy and Morocco to open a dialogue with 
Washington. 200 

Unfortunately, it is necessary to conclude from the events summarized that 
the Reagan Administration failed to take advantage of the several 
opportunities presented to it for peaceful resolution of the controversy in spite 
of President Reagan's statement to the contrary. 201 Consequently, the United 



S.V. MalMson and W.T. Mallison 279 

States Government failed to comply with the first requirement to justify a 
claim of self-defense. 

The second requirement of the law of self-defense is that there be an 
existing armed aggression against the United States or an imminent one which 
is reasonably anticipated in the near future. 202 The entire law of national self- 
defense has been developed to protect a national state from armed aggression 
or an imminent threat of such aggression to its most basic values including 
its continued national existence and independence. Other legal doctrines, 
including the recognized right of a state to take limited measures to protect 
its nationals abroad, have been developed to deal with lesser injuries. 203 The 
Japanese attack on Pearl Harbor provides an example of a then-existing armed 
aggression against the United States. An example of a reasonably anticipated 
imminent armed aggression is the threat to the United States from the 
clandestine attempted emplacement of Soviet inter-continental missiles with 
nuclear capability in Cuba. 

Both of these examples involved action by major military powers which 
was directed at the United States as a national entity. In contrast, the claims 
of President Reagan set forth above 204 refer to injury or threatened injury 
from a state which has a trivial military capacity in comparison with that 
of the United States and only concern alleged past and future attacks on 
individual U.S. citizens rather than the United States as a whole. If a basis 
for the claim of self-defense can be the probability of future Libyan terrorism, 
then one is forced to consider possible future acts which are much harder 
to ascertain than the alleged unclear past events. In evaluating past events, 
even if it were assumed that Libya was responsible for the bombing at the 
La Belle discotheque, the attack on Benghazi and Tripoli several days later 
could not be self-defense to that bombing as an imminent threat. 205 

The determination of whether or not Libyan actions constituted a 
meaningful threat to the United States should also consider the role of other 
states in activities termed "terrorism." George C. Wilson and Fred Hiatt, 
writing on March 26, 1986, stated that: 

U.S. intelligence showed that Iran and Syria probably were more involved in the recent 
acts of terrorism, but those countries were not the visible symbols of evil that Qaddafi 
presented. A demonstration of U.S. resolve was necessary and Libya was singled out. 206 

The persistence of such reports was reflected in an interview with Secretary 
of State Shultz. Lesley Stahl interviewed the Secretary on CBS-TV's "Face 
the Nation" on January 12, 1986: 

Q. There are reports now that investigators in Europe believe that the terrorists who 
perpetrated the bombing in Rome and Vienna did not come from training camps in 
Libya, but came from camps in the Syrian-controlled Bekaa Valley, and then came 
through Syria into Europe. Are there second thoughts within our government about 
just exactly how much Libya is to blame for this latest terrorist act? 207 



280 Law of Naval Operations 

Secretary Shultz replied, in part, "No. Libya is clearly supporting terrorism 
in general." In the balance of a long answer he did not mention Syria. The 
questioner persisted: 

Q. Now, what about Syrian involvement? Just how much is that government 

responsible? 

A. Syria's picture is a rather different one. I would remind you that Syria has long 

been on our terrorist list, but Syria's behavior toward all of these things is rather different 

from Libya's. 

Q. In what sense? How is it different? 

A. In their public attitudes, and because we are working with Syria on a number of 

fronts in a constructive way. 208 

In Secretary Shultz' news conference on January 9, 1986, he was asked a 
question about the Iranian role: 

Q. Why the narrow focus on Libya when our own intelligence community has singled 
out Iran, for example, as a country that trains terrorists, a country that has taken 
American lives over the past several years in places like Lebanon? Why the lashing out 
on this one subject and not tackling the others? 

A. Libya is a country that has been, is, and no doubt will continue to be involved in 
terrorist activities. . . . Insofar as Iran is concerned, we are as concerned anywhere 
about terrorist activities. We are talking about Libya in this instance. We have very 
little trade with Iran. . . , 209 

Secretary Shultz did not state that the "little trade" he referred to was 
principally the Reagan Administration's then secret weapons shipments to 
Iran. 210 The supply of weapons to Iran, of course, made it unrealistic to treat 
that country as Libya was being treated. There were also compelling reasons 
to treat Syria differently. During the Israeli armed attack on the Palestine 
Liberation Organization and Lebanon in 1982, Israel attacked and destroyed 
a large part of the Syrian Air Force and the Syrian air defense system. 
Thereafter, the Soviet Union reinforced its ties with Syria and rebuilt the 
air defense system. 211 The result was that in 1986 Syria possessed a much more 
significant defense system than it did in 1982 and an attack on Syria would 
be much more costly to the attacker than would an attack on Libya. In addition 
to other reasons, Libya was apparently selected for its military weakness 
which made it a less credible threat to the United States than either Iran or 
Syria. 

While it is not unlawful to select a weak target in order to minimize 
casualties to one's own forces, the matter must also be evaluated in terms 
of the proportionality of probable ancillary civilian casualties. It is impossible 
to support the finding of President Reagan in his Executive Order of January 
7, 1986, that the Government of Libya constitutes "an unusual and 
extraordinary threat to the national security and foreign policy of the United 
States." 212 There was simply no threat to the national security, and if there 
were a threat to foreign policy, it would not justify responding military 
measures. Because of these considerations, it is impossible to conclude that 



S.V. Mallison and W.T. Mallison 281 

the United States complied with the legal requirement of an existing or 
imminently anticipated armed aggression against it. 

The third essential element of a valid claim of national self-defense is 
proportionality in responding measures. Because of the failure to use available 
peaceful procedures and the absence of actual necessity, it would be 
unnecessary to consider the issue of proportionality. Even if the first two 
requirements for self-defense had been met, there is considerable doubt that 
the intense use of military coercion in a responding bombing attack could 
be appraised as proportional. One reason for this doubt is that following the 
bombing attacks it became clear that the United States had killed and injured 
many more Libyans (both civilian and military personnel with no indication 
that any of the victims were involved in any acts of terrorism) than the number 
of Americans that Libya was accused of either killing or providing support 
for their killing. 

U.S. Navy Regulations, which are routinely treated as law in many contexts 
including court martial proceedings, are issued by the Secretary of the Navy 
following the approval of the President. 213 Article 0915 entitled "Use of Force 
Against Another State" provides in relevant part: 

The right of self-defense must be exercised only as a last resort, and then only to the 
extent which is absolutely necessary to accomplish the end required. 

Force must never be used with a view to inflicting punishment for acts already 
committed. 214 

In summary, it is very difficult to find legal support for the Reagan 
Administration's claim that the bombing attack is justified as self-defense. 
3. Application of the International Law of Reprisal 

It is sometimes suggested that the law of self-defense is inadequate to 
provide protection against contemporary acts and threats of terrorism and 
that the law concerning reprisals is more relevant. 215 The traditional law on 
the subject has three requirements for an act of reprisal to be justified: (1) 
a response to a violation of international law; (2) an unsatisfied demand for 
termination of the violation; and (3) a proportion between the original 
violation and the act of the reprisal. 216 There is some evidence that there may 
have been a violation of international law by Libyan support for terrorism, 
and apparently the Reagan Administration carried out the bombing on the 
basis that the original violation had not been terminated, although they did 
not at any time claim that the raids were reprisals. The most serious difficulty 
with application of the law of reprisal is the third requirement of 
proportionality. 

The Geneva Convention for the Protection of Civilian Persons (1949) 217 
prohibits reprisals against protected civilian persons. In addition, the well- 
established customary law prohibits attacks upon civilians. It is clear that the 
United States bombing attacks were not directed at civilians as such. 



282 Law of Naval Operations 

Nevertheless, it must have been apparent that the selection of claimed military 
targets in such close proximity to civilian residences and the French Embassy 
presented the gravest danger to civilians. The results of the bombing in civilian 
casualties raise substantial doubt as to whether the requirement of 
proportionality for reprisals was met. 

4. Application of the Law of Targeting 

The failure of the claim of self-defense and the serious doubts concerning 
justification as reprisal mean that there is no clear legal authority for attacking 
Libyan objectives. It is essential, nevertheless, to examine the bombing attacks 
under the criteria of the law of targeting. 

The operational plan for the bombing of Libya was termed El Dorado 
Canyon. Because of the denial of over-flight rights by European countries, 
except Great Britain, the Air Force F-lll aircraft from Lakenheath Air Base 
in England flew around the west coast of the Iberian Peninsula, entering the 
Mediterranean at the Strait of Gibraltar, and after repeated refuelings, 
attacked targets in Tripoli. The Navy aircraft from the carriers attacked 
targets in Benghazi. 

There were five targets specified for the bombing attack: (1) Benina air 
field at Benghazi where some Libyan military aircraft were on the ground; 
(2) Benghazi Barracks — the site of Qaddafi's alternate headquarters and 
command post; (3) Tripoli International Airport where some Libyan military 
transport aircraft were on the ground; (4) Sidi Bilal military facility in 
Tripoli — claimed to be a terrorist training school (Libya claimed that it is 
a school for naval cadets); and (5) Azziziyah compound in Tripoli — Qaddafi's 
main headquarters and his family's home. 218 Following interviews over a 
period of three months with more than 70 of the officials planning the attack, 
Seymour Hersh concludes that Col. Qaddafi was the primary target. 219 
Qaddafi was not hit, but Hersh reports concerning his family: 

All eight of Qaddafi's children, as well as his wife, Safiya, were hospitalized, suffering 
from shock and various injuries. His 15-month-old adopted daughter, Hanna, died several 
hours after the raid. 220 

President Reagan's executive order number 12,333, section 2.11, entitled 
"Prohibition on Assassination" states that "No person employed by or acting 
on behalf of the United States Government shall engage in, or conspire to 
engage in, assassination." 221 Referring to this order in the context of the 
Libyan attacks, and particularly the bombing of the Qaddafi family living 
quarters, one commentator stated: 

If the raid was in fact a veiled execution attempt, it would pit the Reagan Administration 
against a specific presidential order and substantial legal precedent. In 1976, after public 
discontent over the revelations of CIA assassination attempts in Chile, Guatemala and 
Iran, President Ford issued an Executive Order forbidding the Government from 
authorizing the assassination of world leaders. Both Presidents Carter and Reagan have 
reaffirmed that ban. 222 



S.V. Mallison and W.T. Mallison 283 

Aviation Week & Space Technology reported under the headline, "U.S. 
Demonstrates Advanced Weapons Technology in Libya," that a senior 
military official stated shortly after the attack: 

"Understandably, after the all-Navy action in Libya last month, the Air Force wanted 
a piece of the action." The official added, "The fact that the Defense Dept. budget 
is under consideration — and here was an opportunity to show how well the money is 
being spent on aircraft and weapons — was not overlooked by both services as a side 
benefit to the mission. Another reason to include the F-llls in the operation was that 
it showed the support of Great Britain for our antiterrorist activities." 223 

At his joint press conference with Secretary Shultz the evening of April 
14, 1986, Secretary of Defense Weinberger said in his introductory comment: 

We used a combination of 500-pound and 2,000-pound laser-guided weapons and 
precision-guided delayed gravity bombs. All of the Navy planes have returned without 
casualty. All of the F-llls with one exception, have been accounted for and are 
returning. . . . The attack was carried out precisely as planned, and it was, as the 
President said, evidence of very great skill, both navigational as well as the organization 
of the attack which was a difficult one from the professional point of view and done 
with great effectiveness. . . P* 

During the ensuing question period, the following took place: 

Q. There was also a report that you hit part of the French Embassy in Libya. Do you 

know anything about that report? 

A. Secretary Weinberger. That would be, I think, virtually impossible. 225 

David Blundy and Andrew Lycett, have reported on both the rules of 
engagement and the civilian casualties. 226 

The rules of engagement for Operation Eldorado Canyon had been strictly 
formulated, or so it was claimed in the official U.S. explanation to the British Cabinet: 
the planes should strike only targets that could be precisely defined and shown to be 
related to terrorist and military activity. The weapons officer in each plane had to have 
a 'double lock-on' before he could release his bombs, which meant that he had to fix 
the target, not only with his forward looking infra-red night sight, but also with his 
Pave Track radar. Any plane which failed to achieve this was under orders to leave 
the target area and jettison its bombs over the sea. . . . 

At least a dozen bombs and missiles fell in the area of Bin Ashur a [suburb of Tripoli], 
making craters ten feet deep, knocking out the front of an apartment building and scoring 
direct hits on private villas. The house next to the French embassy was destroyed and 
the embassy itself severely damaged. One bomb or missile landed in the center of a 
park and children's playground. A child's foot was sticking out of the rubble of one 
building. The body of an old man was fixed in a crouch as if he had been getting out 
of bed when the bombs hit. Another old man lay on a stretcher outside his villa, killed 
by falling rubble. It was a gruesome sight. 227 

In another account, David C. Martin and John Walcott report similar civilian 
damage and conclude that: "Measured by the bomb-damage assessment, the 
raid was less than impressive." 228 The newspapers reported various 
inaccuracies in the bombing. For example, Edward Schumacher, reported in 
the New York Times: 



284 Law of Naval Operations 

More than a dozen bombs and missiles from the American air raids early Tuesday appear 
to have missed an air base and hit two farms about two miles away according to evidence 
seen by reporters on visits to the farms today. 229 

Unfortunately, aerial bombardment even with the most advanced technology 
remains a very blunt instrument. Operational planners of "surgical strikes," 
employing "pin-point accuracy," and "precision delivered munitions," 
should recognize that results consistent with such plans are seldom manifested 
in an actual bombardment. 

Even though there was no prior armed conflict between the United States 
and Libya, the armed attack brought into effect the law of armed conflict. 
Ever since the Prize Cases, 230 decided by the U.S. Supreme Court during the 
Civil War, the law of armed conflict has been applicable to the fact of an 
international armed conflict including episodes of hostilities without requiring 
a so-called technical state of war. Therefore, Hague Convention (IX) 
Concerning Bombardment by Naval Forces in Time of War (1907), 231 is 
applicable to the bombing of Tripoli and Benghazi. It prohibits bombing of 
undefended locations, and military targets in Tripoli and Benghazi were 
defended even though the Libyan defenses were weak in comparison with 
the military technology and the weight of the ordnance employed against 
them. Article 6 of the Convention provides: 

If the military situation permits, the commander o( the attacking naval force, before 
commencing the bombardment, must do his utmost to warn the authorities. 

In the bombardment of the Iranian oil platforms in the Persian Gulf, 
considered previously, 232 prior notice was given so that the personnel would 
evacuate the platform. In the attacks on Tripoli and Benghazi a probable 
objective was to kill Libyan personnel alleged to be involved in terrorist 
training activities and so no warning was given. In view of the ambiguous 
language concerning "[i]f the military situation permits," it is not clear that 
Hague Convention IX required a warning. The unfortunate result, however, 
in addition to the killing of Libyan military personnel who possibly had no 
connection with terrorism, was the killing o( a substantial number of 
civilians. 233 

The Navy Commander's Handbook on the Law of Naval Operations ("NWP 9") 
under the heading "Incidental Injury and Collateral Damage" provides the 
legal criteria of the well-established customary international law: 

It is not unlawful to cause incidental injury or death to civilians, or collateral damage 
to civilian objects, during an attack upon a legitimate military objective. Incidental 
injury or collateral damage should not, however, be excessive in light of the military 
advantage anticipated by the attack. Naval commanders must take all practicable 
precautions, taking into account military and humanitarian considerations, to keep 
civilian casualties and damage to the absolute minimum consistent with mission 
accomplishment and the security of the force. 234 



S.V. MalNson and W.T. Mallison 285 

This legal standard is easier to apply in an on-going international conflict 
than it is to the attacks on Tripoli and Benghazi. The first difficulty here 
is to determine whether the military objectives which were targeted 
constituted "a legitimate military objective." It is also difficult to identify 
the lawful "military advantage" which was anticipated by this attack. 
Consequently, it is impossible to relate incidental "injury or collateral 
damage" to civilian persons or objects to such a "military advantage." Rather 
than seeking military advantage in the attack, the stated objective of the 
Reagan Administration was to deter claimed Libyan terrorism against U.S. 
citizens and the hard fact remained that no such direct terrorism was credibly 
proven to exist either before or after the bombing attack. 235 

A State Department "Fact Sheet" entitled Libya's Qaddafi Continues Support 
for Terrorism contains charges against Libya for the years 1986-1988. 236 It states 
Qaddafi conducts terrorism against Libyan dissidents 237 and that Libya's 
foreign policy and diplomatic objectives are inconsistent with those of the 
United States. 238 It includes a "Chronology of Libyan Support for Terrorism 
1986-1988," which details thirty incidents in which "Libyan involvement" 
was often stated to be "suspected" but without a single incident involving 
a direct Libyan attack on U.S. citizens, although several attacks conducted 
by others against U.S. citizens or interests are stated to be supported by Libya 
but without any evidence. 239 Of the thirty incidents, four are listed as involving 
"Americans." Concerning the bombing at the La Belle discotheque, the "Fact 
Sheet" states: "The U.S. Government announced it had direct evidence of 
Libyan complicity in the attack." 240 There can be no question but that this 
was "announced," but the evidence of complicity is, on the most favorable 
view, equivocal. Of course, it is possible that there was secret evidence which 
cannot be considered in this analysis. 241 

In summary, even if there had been clear legal authority to bomb Benghazi 
and Tripoli, and full acknowledgment is accorded to the tactical effort to 
engage only in "precision bombing," the results achieved in the killing of 
civilians probably violate the law. The existence of ancillary civilian casualties 
which occur as a result of the lawful targeting of military objectives is not 
unlawful. The key issue concerns proportionality. On the basis of the 
information about the attacks on Benghazi and Tripoli, it is not possible to 
conclude with assurance that the customary law standard of avoiding 
excessive, that is, disproportionate, injury or death to civilians was met by 
the targeting. 242 

Authors' Postscript Concerning Subsequent Possible Evidence of 
Libyan Involvement in the Bombing of LaBelle Discotheque 

Since the completion of the text on this subject there have been some 
references in the media to possible Libyan involvement in the bombing. Most 



286 Law of Naval Operations 

of the reports indicate that some agents of the former East German secret 
police, "Stasi", state the existence of a Libyan connection. Among the 
examples are accounts in Time magazine of July 23, 1990 ("World Notes" 
at p. 54, cols. 1-2), the Washington Post of June 21, 1990 (p. A27, cols. 4-5 
cont. at p. A30, col. 1) and the New York Times of July 15, 1990 (p. 6, cols. 
1-6) and July 28, 1990 (p. A4, cols. 4-5). 

Two facts must be established to provide legal justification for the military 
response by the Reagan Administration. The first is unequivocal evidence of 
significant Libyan involvement. The second is equally unequivocal evidence 
of knowledge of this before the decision to respond militarily was made. Since 
most of the reports emanate from the former Stasi, this would require that 
the Reagan Administration was privy to Stasi sources. 

In the event that both were to be established, significant major issues 
concerning the law of self-defense and of targeting would remain. 

VI. The Basic Principles of the Law of Naval Targeting 

It is now practicable to set forth the contemporary rules of law concerning 
naval targeting based upon the development of the customary law in the 
World Wars and subsequently and upon the treaty law including the London 
Protocol (1936) and Geneva Convention II for the Amelioration of the 
Condition of Wounded, Sick and Shipwrecked Members of Armed Forces 
at Sea (1949). Because the law applies equally to surface and submarine 
warships and military aircraft, a single set of basic rules may be formulated. 
The Commander's Handbook on the Law of Naval Operations (NWP 9) adopts a 
different approach by setting forth separate targeting rules for "Surface 
Warfare," 243 "Submarine Warfare" 244 and "Air Warfare at Sea." 245 Although 
the rules are substantially similar, the separate treatment is apparently 
designed to indicate that different weapons platforms operate in distinct 
tactical environments. 

The general principles of the law of armed conflict are, of course, applicable 
to naval targeting. In addition to the basic principles of military necessity 
and humanity conceived as a single principle of avoiding unnecessary 
destruction of human and material values, 246 and the Martens Clause 247 which 
specifies that when the situation is not covered by an existing rule the parties 
to the conflict remain bound by the customary international law and the usages 
established by the community of states, the following are applicable: 

1. The right of belligerents to adopt means of injuring the enemy is not 
unlimited. 

2. It is prohibited to direct attacks against the civilian population as such. 

3. The basic distinction between combatants and non-combatants must be 
made. 248 



S.V. Mallison and W.T. Mallison 287 

A. Enemy Warships and Military Aircraft 

Enemy warships and military aircraft (including naval and military 
auxiliaries) may lawfully be the objects of attack, destruction, or capture 
anywhere outside of neutral territory. Since such warships and aircraft are 
valuable military assets, their capture is always desirable if tactically possible. 
It is unlawful to refuse quarter to an enemy attempting to surrender in good 
faith. 249 When an enemy warship has clearly indicated the intention to 
surrender by hauling down its flag or hoisting a white flag, or by stopping 
engines, or by responding to the attacker's directions, or by taking to lifeboats, 
or in any other manner, the attack must be stopped. In many tactical situations 
a submarine indicates surrender by coming to the surface. Manifestation of 
surrender by an aircraft is especially difficult. However, if a good faith offer 
to surrender is made, it must be accepted. One such manifestation would be 
a willingness to land the aircraft in the territory of the attacker. It is not 
necessary to formally adjudicate the transfer of title of a captured enemy 
warship or military aircraft since such ownership vests immediately in the 
captor's government by the act of capture. 250 

B. Enemy Merchant Vessels and Civilian Aircraft and Neutral Merchant Vessels 
and Civilian Aircraft which are Participating in the Enemy Armed Conflict Effort 

Such merchant vessels and civilian aircraft are valuable assets and should 
be captured if possible whenever they are located outside of neutral territory. 
The use of visit and search is not required if identification of status can be 
made by electronic or other means. If the military situation following a 
capture prevents the sending or taking in of such a vessel or aircraft for 
adjudication, it may be destroyed after adequate measures are taken for the 
safety of crew and passengers. 251 All documents and papers relating to the 
captured vessels or aircraft should be safeguarded and each case of destruction 
should be reported promptly to higher command. 252 If capture is militarily 
impracticable, the vessel or aircraft may be attacked and destroyed if it falls 
under one of the following categories: 253 

1. Refusing to stop or follow directions upon being ordered to do so; 

2. Actively resisting visit and search or capture; 

3. Sailing under convoy of enemy warships or enemy military aircraft; 

4. If incorporated into or assisting the intelligence system of the enemy 
armed forces; 

5. If acting as a naval or military auxiliary to the enemy armed forces; 

6. If participating in the enemy war effort. 254 

C. Certain Enemy and Neutral Merchant Vessels and Civil Aircraft Which are 
Immune from Attack 

The characterization of particular merchant vessels and civil aircraft as 



288 Law of Naval Operations 

"enemy" does not, without more, make them lawful objects of attack. Neutral 
merchant vessels and civil aircraft comprise two distinct categories: those 
participating in and those not participating in the enemy war effort. 255 The 
following categories of vessels and aircraft are immune from attack: 

1. Enemy merchant vessels and civil aircraft which are not participating 
directly in the enemy armed conflict effort; 

Example: Such a vessel or aircraft which is away from the main area of combat 
operations in a location where visit and search, electronic or other identification, or 
orders to land may be employed. 

2. Neutral merchant vessels and civil aircraft which are not participating 
in the enemy armed conflict effort; 

Example: A neutral merchant ship or civil aircraft engaged in genuine inter-neutral 
trade or the transportation of civilian passengers. 

3. Vessels and aircraft designated for and engaged in the exchange of 
prisoners (cartel vessels); 

4. Vessels and aircraft guaranteed safe conduct by agreement of the parties 
to the conflict; 

5. Properly designated and marked hospital ships, medical transports, and 
medical aircraft; 

6. Vessels and civil aircraft engaged in philanthropic or non-military 
scientific missions; 

7. Small coastal fishing boats and small boats engaged in local coastal trade. 
Such boats are subject to reasonable order of the naval commander in control 
of the area as, for example, an order to depart from the immediate area of 
combat operations. 256 

D. Naval Bombardment 

"Bombardment" is used here to refer to naval bombardment by surface 
or submarine warships or by naval or military aircraft of enemy targets on 
land. All contemporary methods of bombardment including gunfire, rockets, 
missiles, and bombs are included. Prior to the World Wars, bombardment 
of shore objects by naval gunfire was an incident of many armed conflicts. 
It was employed again in both World Wars, and from 1939 to 1945 naval 
gunfire was used as the spearhead of Allied amphibious operations. The basic 
rules of naval targeting considered above are also applicable here. 257 

The United States is a party to Hague Convention (IX) Concerning 
Bombardment by Naval Forces in Time of War (1907). 258 Its article 1(1) 
provides: "The bombardment by naval forces of undefended ports, towns, 
villages, dwellings, or buildings is forbidden." Article 2 states that military 
objectives, even in undefended locations, are not immunized from naval 
bombardment. Although aviation was in a primitive stage of development 



S.V. Mallison and W.T. Mallison 289 

in 1907, this Hague Convention applies comprehensively to bombardment and 
therefore includes aerial bombardment. Of course, the customary law rule 
of proportionality, that incidental civilian casualties and damage must be 
limited to that which is proportional to the military advantage to be expected 
from the attack, is applicable to naval bombardment as it is to all armed 
conflict. Consequently, the deliberate or wanton destruction of areas of 
concentrated civilian habitation is prohibited. 

The parties to a conflict may immunize particular demilitarized zones by 
specific agreement. Medical personnel and facilities are always immunized 
unless they are used in violation of law for military purposes. It is also well 
established customary law that buildings devoted to religious, cultural and 
charitable purposes are not lawful objects of attack. 259 The following rules 
are based upon customary law and the established practices of the community 
of states, portions of which have been codified in treaties: 

1. Bombardment for the purpose of terrorizing the civilian population is 
prohibited. 

2. The wanton or deliberate destruction of areas of civilian habitation 
including cities, towns, villages, dwellings or buildings is prohibited. 

3. A demilitarized zone agreed to by the parties to the conflict is exempt 
from bombardment. 

4. Medical facilities including medical establishments and units, medical 
vehicles, equipment and stores may not be made the objects of bombardment. 
The distinctive medical emblem, either a red cross, a red crescent or the red 
lion and sun, should be clearly displayed in order to facilitate immunity. Any 
object identified otherwise as a medical facility is also immune from 
bombardment even if it is not marked with the protective symbol. 

5. Hospital zones established by agreement of the parties to the conflict 
are immune. 

6. All religious, cultural or charitable facilities or buildings are not lawful 
objects of bombardment. 260 The distinctive emblem to protect such facilities 
or buildings is a rectangle divided diagonally into two triangular halves with 
the upper portion black and the lower portion white. 261 Any object identified 
otherwise as such a facility is also immune from bombardment even if it is 
not marked with the protective symbol. 

7. It is prohibited to bomb installations which if destroyed would release 
forces harmful to the civilian population if the probable harm to civilians 
would be excessive in relation to the military advantage to be achieved by 
bombardment. Such installations include nuclear and other power plants as 
well as dams, dikes, and similar objects. 262 

8. Whenever the military situation permits, commanders are obligated to 
make every effort to warn the civilian population located in proximity to 
a military objective which is the target of bombardment. Warnings should 



290 Law of Naval Operations 

be specific, if possible, but a general warning is permissible if a more specific 
one would jeopardize the mission of the bombarding force. 263 

E. Enforcement of the Law 

The law of targeting illustrates the practicality of the law of armed conflict, 
promoting military efficiency by designating military personnel and objects 
as lawful targets while minimizing unnecessary destruction of human and 
material values through prohibiting attacks on civilian persons and objects. 
The basic principles of the law of naval targeting have remained constant 
while being applied to changing technology including the development of 
submarines, aircraft and nuclear weapons. These principles apply to 
contemporary over-the-horizon weapons systems which must be employed 
so as to protect civilian persons and objects from disproportionate ancillary 
casualties and damage. A thoughtful naval historian has recently concluded 
that future armed conflict at sea will be conducted almost exclusively under 
water by diverse types of submarine warships. 264 

It is sometimes suggested that a law of armed conflict of ideal doctrinal 
content would emphasize the principle of humanity over considerations of 
military necessity. Such a law would break down in actual practice and would 
be much less effective in protecting human and material values than the 
existing law which takes account of the full range of legitimate military 
interests. A basic sanction of the law of armed conflict is the common self- 
interest of the participants that more is to be gained by adhering to the law 
than by violating it. There is also an important element of reciprocity and 
mutuality in observance. 265 The alternative to enforcement of the law is not 
only the unnecessary destruction of human and material values in armed 
conflict, but a chaotic international system which requires the entire world 
community to live under the threat of impending nuclear disaster. 

The United States has, throughout its history with few exceptions, been 
a leader in the development and enforcement of international law including 
the law of armed conflict. Because military necessity has been taken into 
account in formulating the legal rules such claimed necessity cannot be 
invoked as a device to repeal or modify them. It is not possible to ascertain 
a military advantage, much less a military necessity, in four of the examples 
considered in this study: the bombing of a submarine engaged in rescue 
operations, the killings following the Battle of the Bismarck Sea, the 
prohibition of North Korean coastal fishing, and the April 1986 bombing of 
Libya. 

In spite of these instances, the United States Government, and the Navy, 
as well as the other Armed Services, continue to emphasize the importance 
of the entire law of armed conflict and the key enforcement role of line 
officers. The mandatory instructions requiring observance of the law, the 
manuals explaining the law, including the legally accurate and militarily 



S.V. Mallison and W.T. Mallison 291 

practical Commander's Handbook on the Law of Naval Operations, 266 and the 
reliance on officers of the Judge Advocate General's Corps who are specialists 
in international law all facilitate the line officer's role. 

Notes 

* Research Associate International and Comparative Law Program, George Washington University 

** Lieutenant, USNR (Ret.) (Active duty 1942-1946); Emeritus Professor of Law, George Washington 

University; Charles H. Stockton Professor of Law, Naval War College 1960-1961 and 1974-1975. 

The authors express appreciation to alumni of the George Washington University Law School, including 

military lawyers on active duty, who provided constructive criticisms of a preliminary draft of this study. 

The authors alone are responsible for its contents and analyses. 

1. The widely accepted sources of international law are set forth in art. 38 of the Statute of the 
International Court of Justice. They also include "general principles," "judicial decisions" and the writings 
of the "most highly qualified" scholars. 

2. 67 U.S. 635 (1862). The Court held that President Lincoln's blockade of Confederate ports applied 
to the reality of existing naval conflict and was valid without a declaration of war. . 

3. Common art. 2 of each of the Conventions: Convention I for the Amelioration of the Condition 
of Wounded and Sick in Armed Forces in the Field, 12 August 1949, 6 U.S.T. 3114, T.I.A.S. No. 3362; 
Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked members of 
Armed Forces at Sea, 12 August 1949, 6 U.S.T. 3217, T.I.A.S. 3363; Convention III Relative to the 
Treatment of Prisoners of War, 12 August 1949, 6 U.S.T. 3316, T.I.A.S. No. 3364; Convention IV Relative 
to the Protection of Civilian Persons in Time of War, 12 August 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365. 
These Conventions will hereinafter be referred to as the 1949 Geneva Conventions. 

4. Art 0605, U.S. Navy Regulations (1973). 

5. See U.S. Department of Defense, Department of Defense Law of War Program, DOD Directive 
5100.77 (Washington: 10 July 1979); U.S. Department of the Navy, Law of Armed Conflict Program to 
Ensure Compliance by the Naval Establishment, SECNAVINST 3300.1 A (Washington: 2 May 1980); U.S. 
Office of Naval Operations, Law of Armed Conflict Program to Ensure Compliance by U.S. Navy and 
Naval Reserve, OPNAVINST 3300.52 (Washington: 18 March 1983); Headquarters, U.S. Marine Corps, 
Marine Corps Law of War Program, MCO 3300.3 (Washington: 2 August 1984). The Army and Air Force 
have analogous instructions. 

6. 6 U.S. (2 Cranch) 170 (1804). Justice Clark relied on this case in his concurring opinion in Youngstown 
Sheet and Tube Co. v. Sawyer, 343 U.S. 579 at 660 (1952). 

7. Act for the Government of the Navy, ch. 24, 1 Stat. 709, 711 (1799). 

8. 10 U.S.C. 892 (1983). 

9. The Commander's Handbook on the Law of Naval Operations (NWP 9), para. 8.1 (hereinafter Commander's 
Handbook or NWP 9). 

10. Schindler & Toman, The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other 
Documents, 3rd ed. (Dordrecht, Netherlands: Martinus Nijhoff Publishers, 1988), p. 787 (hereinafter 
Schindler & Toman). 

11. 36 Stat. 2277 (1909); Schindler & Toman, supra note 10, p. 63. 

12. Schindler & Toman, supra note 10, p. 791. 

13. Id., p. 797. 

14. 36 Stat. 2332 (1909); Schindler & Toman, supra note 10, p. 803. 

15. 36 Stat. 2351 (1909); Schindler & Toman, supra note 10, p. 811. 

16. 36 Stat. 2371 (1909); Schindler & Toman, supra note 10, p. 313. Based on the Geneva Convention 
for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field (1906), Schindler 
& Toman, supra note 10, p. 301 . 

17. 36 Stat. 2396 (1909); Schindler & Toman, supra note 10, p. 819. 

18. The "Proces- Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty 
of London of April 22, 1930" (known informally as the "Protocol of 1936") contains the identical rules 
set forth in the London Naval Treaty Part IV (art. 22). Art. 23 of the London Navy Treaty provided, 
"Part IV shall remain in force without limit of time." The rest of the Treaty expired on Dec. 31, 1936. 
In the Proces- Verbal the parties to the London Naval Treaty invited other states to agree to Part IV 
(art. 22). There are 49 state-parties including France, Germany, Italy, Japan, Soviet Union, United 
Kingdom, and the United States. Schindler & Toman, supra note 10, p. 883. 

The London Naval Treaty Part IV (art. 22) is in 46 Stat. 2858 at 2881-82 (1931). 

19. Supra note 3. 



292 Law of Naval Operations 

20. Hague Convention IV, supra note 11, Annexed Regulations, art. 23(e). 

21. The historic law of naval warfare is considered in C. John Colombos, The International Law of the 
Sea, passim, 66th rev. ed. (New York: David McKay Co., 1967). 

22. L. Oppenheim, International Law: Vol. II, Disputes, War and Neutrality 7th ed., Lauterpacht ed., (New 
York: Longmons Green, 1952), pp. 869-79. 

23. See generally C. John Colombos, A Treatise on the Law of Prize 3rd ed. (New York: David McKay 
Co., 1949). 

24. Schindler & Toman, supra note 10. 

25. Several minor naval powers acceded to the Declaration, id. at pp. 789-80. 

26. W. Thomas Mallison, Jr., Studies in the Law of Naval Warfare: Submarines in General and Limited Wars, 
U.S. Naval War College: International Law Studies-1966 (Washington: U.S. Govt. Print. Off., 1968), p. 133. 

27. The textual paragraph is based upon id. at pp. 106-13. 

28. See the text accompanying infra note 41. 

29. See Gordon Campbell, My Mystery Ships (Garden City, N.Y.: Doubleday, Doran & Co., 1929); 
R. W. Smith, "The Q-Ship— Cause and Effect," U.S. Naval Institute Proceedings, May 1953, v. 79, p. 533. 

30. The role of Admiral W. S. Sims in obtaining adoption of the convoy system is described in Elting 
E. Morison, Admiral Sims and the Modem American Navy (Cambridge: The Riverside Press, 1942), pp. 337- 
63. 

31. Germany based its claim on reprisals rather than on legal right. Mallison, supra note 26 at pp. 61- 
74. 

32. Id. at pp. 109-11. 

33. Naval War College International Law Documents: Conference on the Limitation of Armament-1921 
(Washington: U.S. Govt. Print. Off., 1923), p. 49. 

34. Id. at p. 53. 

35. Id., passim. 

36. Id. at pp. 58,61. 

37. Id. at pp. 115-16. 

38. Id. at p. 116. 

39. Treaty for the Reduction and Limitation of Naval Armaments, 46 Stat. 2858 at 2881-82 (1930); 
Schindler & Toman, supra note 10 at p. 881. 

40. Schindler & Toman, supra note 10 at 883. An analysis of article 22 following its adoption appears 
in "London Naval Treaty, Article 22, and Submarines," Naval War College, International Law Situation — 
1930 (Washington: U.S. Govt. Print. Off., 1931), pp. 1-65. 

41. "The Declaration of Paris in Modern War," Law Quarterly Review, April 1959, v. 55, p. 237 at 
p. 249. 

42. C. B. A. Behrens, Merchant Shipping and the Demands of War (London: H. M. Stationery Office and 
Longmans Green, 1955), p. 96. 

43. See S. W. Roskill, "Capros not Convoy: Counter-Attack and Destroy!" U.S. Naval Institute 
Proceedings, October 1956, p. 1042. CAPROS= Counter Attack Protection and Routing of Shipping. 

44. On the liability of armed merchant ships to attack, see Edwin Borchard, "Armed Merchantmen," 
American Journal of International Law, January 1940, v. 34, p. 110. 

45. Portions of the Handbook are reprinted in Proceedings of the International Military Tribunal at Nuremberg 
v. 40, p. 88 at p. 89 (42 vols., 1947-1949) (cited hereinafter as IMT). 

46. See the text accompanying note 40. Article 74 of the Prize Code, which reproduces the 1936 Protocol, 
appears in Green Hackworth, Digest of International Law, (Washington: U.S. Govt. Print. Off., 1944) v. 
7, ch. 23, p. 248. 

47. This was stated by Fleet Judge Advocate Kranzbuhler in his argument in behalf of Admiral Doenitz, 
IMT, supra note 45, v. 18, pp. 312, 323. 

48. Mallison, supra note 26 at pp. 75-84. 

49. The text of the message is taken from a photographic copy of the original which was declassified 
on December 2, 1960. 

50. Mallison, supra note 26, at pp. 121-22. 

51. Robert W. Tucker, The Law of War and Neutrality at Sea, Naval War College, International Law Studies- 
1955 (Washington: U.S. Govt. Print. Off., 1957), p. 64. 

52. Id. at p. 66. 

53. Id. 

54. Mallison, supra note 26 at p. 121. 

55. Report of the Committee of Jurists, Proceedings of the London Naval Conference of 1930 and Supplementary 
Documents, State Department Conference Series No. 6 (Washington: U.S. Govt. Print. Off, 1931), Appx. 2, 
p. 189. 



S.V. MalMson and W.T. Mallison 293 

56. See Harvard Research in International Law, "Draft Convention on the Law of Treaties," American 
Journal of International Law (Supplement), October 1935, v. 29, p. 653, 937; McDougal, Lasswell & Miller, 

The Interpretation of Agreements and World Public Order, passim (New Haven: Yale Univ. Press, 1967). 

57. Schindler & Toman, supra note 10, at p. 884. 

58. Id. at p. 885. 

59. Mallison, supra note 26, at p. 120. 

60. Convention (III) for the Adaptation to Maritime Warfare of the Principles of the Geneva 
Convention, July 29, 1899, 32 Stat. 1827 (1903), Schindler & Toman, supra note 10, p. 289. 

61. Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva 
Convention, October 18, 1907, 36 Stat. 2371 (1909), Schindler & Toman, supra note 10, p. 313. 

62. Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, August 
22, 1864, 22 Stat. 940 (1888), Schindler & Toman, supra note 10, p. 279. 

63. Henri Dunant, a Swiss business man, was the principal founder of the International Committee 
of the Red Cross and urged the adoption of the 1864 Convention as the result of his seeing the tragic 
condition of the wounded soldiers following the Battle of Solferino in Italy. He was the author of A 
Memoir of Solferino (original French text 1862; American Red Cross English transl. 1939) which, along with 
the code of the law of land warfare prepared by Professor Francis Lieber of Columbia College and entitled 
Instructions for the Government of Armies of the United States in the Field, promulgated as General Order No. 
100 by President Lincoln on 24 April 1863 (Schindler & Toman, supra note 10 at p. 3), had a great influence 
in the development of the international humanitarian law of armed conflict. 

64. "Judgment in Case of Lieutenants Dithmur and Boldt," reprinted in American Journal of International 
Law, October 1922, v. 16, pp. 708-724. 

65. See R. G. Voge, "Too Much Accuracy," U.S. Naval Institute Proceedings, March 1950, v. 76. p. 257. 

66. Id. 

67. The diplomatic interchange and other documentation is in "Sinking of the 'Awa Maru,'" Naval 
War College International Law Documents 1944-45, (Washington: U.S. Govt. Print. Off., 1946), pp. 126- 
38. 

68. 175 U.S. 677 (1900). 

69. Supra note 17. 

70. IMT, supra note 45, v. 1, p. 311. In the case of Admiral Raeder, who was also charged with war 
crimes in connection with Germany's submarine campaign, the Tribunal made "the same finding on Raeder 
on this charge [war crimes — count three] as it did as to Doenitz. . . ." Id., v. 1, p. 315 at p. 317. 

71. Id., v. 19, p. 469. 

72. Id., v. 1, pp. 312-13. 

73. The draft treaty on submarines produced by the Washington Naval Conference (1921-1922) 
contained a provision for criminal trials for its violation, but it was not ratified. See the text accompanying 
supra note 38. 

74. Behrens, supra note 42 and accompanying text. 

75. S. W. Roskill, White Ensign: The British Navy at War 1939-1945 (Annapolis: U.S. Naval Institute, 
1960), p. 97. 

76. "Case No. 55: Trial of Helmuth Van Ruchteschell," Reports of Trials of War Criminals (London: H. 
M. Stationery Office, 1949), v. 9, p. 82 (hereinafter Trials of War Criminals). 

77. Text of Order is in "Case No. 54: Trial of Moehle," Trials of War Criminals, supra note 76, v. 9, 
p. 75. 

78. Roskill, supra note 75 at p. 224. 

79. Id., at pp. 224-25. 

80. Excerpt of letter from Historical Division, U.S. Air Force to Mr. David D. Lewis (April 12, 1960). 
The excerpted letter appears as an enclosure to letter from Director, Research Studies Institute, Air 
University, Maxwell Air Force Base to President, Naval War College (April 19, 1961). 

81. IMT, supra note 45, v. 1, p. 313. 

82. Trials of War Criminals, supra note 76, v. 9, p. 75. 

83. Id., v. 1, p. 1; also reported in David Maxwell Fyfe, general ed., War Crimes Trials, v. 1, John 
Cameron, ed., Trial of Heinz Eck et al. (The Peleus Trial) (London/Edinburgh/Glasgow: William Hodge 
& Co., Ltd., 1948), which contains the entire record of proceedings in the trial. 

84. Trials of War Criminals, supra note 76, v. 1, p. 2. 

85. Id., at p. 13. 

86. Judgment and Proceedings of the International Military Tribunal for the Far East (April 29, 1946- 
April 16, 1948 with sequential numbering of typewritten pages and separate volume for each day of the 
trial). Hereinafter FEIMT Judg. or FEIMT Proc. The textual quotation is from FEIMT Judg. at page 
1,072. 

87. FEIMT Judg., supra note 86 at p. 1073. 



294 Law of Naval Operations 

88. Id., at pp. 1,073-74. 

89. The textual account of the sinking is based upon FEIMT Proc, pp. 15,095-148 and FEIMT Judg., 
pp. 1,074-75. 

90. The factual account in the text is based upon Samuel Eliot Morison, History of the United States 
Naval Operations in World War II, v. 6 (Breaking the Bismarck Barrier) (Boston: Little, Brown & Co., 1950), 
pp. 62 et seq., and Ronald H. Spector, Eagle Against the Sun: The American War with Japan (New York: 
Free Press, 1985), pp. 226-28. Professor Spector served as the Director of Naval History, Department 
of the Navy, 1986-1989. 

91. Morison, supra note 90, p. 62. 

92. Professor Spector has reported the actual event: "by spring [1943] about 40 percent of Japanese 
front-line troops in New Guinea were suffering from disease or malnutrition." Spector, supra note 90, 
p. 228. 

93. Id. 

94. Report of Justice Robert H. Jackson, U.S. Representative to the International Conference on 
Military Trials, Document XLIV, Minutes of Conference session of July 23, 1945 International Conference 
on Military Trials, London (Washington: U.S. Govt. Print. Off., 1949), p. 330. 

95. Supra note 16, art. 16(1). 

96. 1949 Geneva Conventions, supra note 3. 

97. Schindler & Toman, supra note 10 at p. 621. Protocol II is in id. at p. 689. 

98. Information provided by the International Committee of the Red Cross concerning ratifications 
and accessions to the Additional Protocols of 8 June 1977, as of 8 August 1989. The I.C.R.C. Press Release 
of 8 August 1989 stated that the Soviet Union ratified both Protocols without reservations or statements 
of interpretation on 4 August 1989. 

99. The U.S. Joint Chiefs of Staff unclassified memorandum of 18 March 1986 contains a listing of 
many Protocol I articles which they consider are now, or are becoming, customary law. 

100. One of the arguments supporting the position of the Reagan Administration is Douglas J. Feith, 
"Law in the Service of Terror — The Strange Case of Additional Protocol I," The National Interest, v. 1, 
p. 36 (1985). It is answered decisively by the late COL Waldemar A. Solf, JAGC, U.S. Army [a senior 
member of the U.S. Delegation to the Geneva Diplomatic Conference on the Reaffirmation and 
Development of International Humanitarian Law Applicable in Armed Conflicts] in "A Response to 
Douglas J. Feith 's Law in the Service of Terror — The Strange Case of the Additional Protocol,' " Akron 
Law Review, Fall 1986, v. 20, p. 261. 

101. Schindler & Toman, supra note 10, p. 651. 

102. Schindler & Toman, supra note 10, p. 495. Art. 33(3) provides: "Reprisals against protected persons 
and their property are prohibited." 

103. The textual account of the Korean conflict is based upon Cagle & Manson, The Sea War in Korea 
(Annapolis: U.S. Naval Institute, 1957), passim. 

104. Supra note 68. 

105. Cagle & Manson, supra note 103, pp. 296-97. 

106. Id., p. 357. 

107. Supra note 17. 

108. The old battleships were the spearhead of the amphibious assaults and they used target area mapping 
combined with careful aerial observation (typically in slow OS2U seaplanes which were sitting ducks 
for Japanese fighter aircraft) in order to distinguish military targets from civilian persons and objects. 
See the reference to the accurate character of their targeting in Spector, supra note 90, p. 303. The new 
high speed battleships which joined the fleets immediately prior to and during World War II typically 
provided anti-aircraft protection to the fast carrier task forces. 

109. Cagle & Manson, supra note 103, p. 97. 

110. Supra note 15. 

111. A more comprehensive analysis of the international law of self-defense is in W. Thomas Mallison 
& Sally V. Mallison, Armed Conflict in Lebanon, 1982: Humanitarian Law in a Real World Setting, Chap. 2 entitled 
"Aggression and Self-Defense in the World Legal Order," 2nd rev. ed. (Washington: American 
Educational Trust, 1985). 

112. Report of Rapporteur of Committee 1/1 to Commission I, U.N. Conference on International 
Organization, Dept. of State Conference Series No. 83 (Washington: U.S. Govt. Print. Off, 1946), p. 498. 

113. Supra note 111 at p. 16. The doctrine of anticipatory self-defense is examined in the Judgment, 
1 IMT 205-09, and in Marjorie Whiteman, Digest of International Law (Washington: U.S. Govt. Print. Off, 
1971), v. 12, pp. 47-51. 

114. John Bassett Moore, Digest of International Law (Washington: U.S. Govt. Print. Off, 1906), v. 2, 
pp. 409-14. 



S.V. Mallison and W.T. Mallison 295 

115. Mr. Webster to Mr. Fox, April 24, 1841, British & Foreign State Papers (1840-1841), v. 29, p. 1129 
at p. 1138. 

116. Id. 

117. The textual account of the facts, as well as the legal analysis, is based upon W. Thomas Mallison, 
"Limited Naval Blockade or Quarantine-Interdiction: National and Collective Defense Claims Valid 
Under International Law," George Washington L. Rev., December 1962, v. 31, pp. 335-98 (reprinted as a 
booklet). 

See Graham T. Allison, Essence of Decision: Explaining the Cuban Missile Crisis (Boston: Little Brown Co., 
1971). 

118. Robert D. Powers, Jr., "Blockade: For Winning Without Killing," U.S. Naval Institute Proceedings, 
August 1958, p. 61. 

119. Proclamation No. 3504, 3 C.F.R. 232 (1959-1963), reprintedin 50 U.S.C.A. Appendix 1 at 15. Theodore 
Sorensen (Special Counsel to the President) also wrote a blockade draft. Allison, supra note 117 at p. 208. 

120. "United States and Soviet Union Agree on Formula for Ending Cuban Crisis: Exchange of 
Messages," Dept. of State Bulletin, Nov. 12, 1962, v. 47, pp. 741-46. 

121. Proclamation No. 3504, supra note 119. 

122. Id. 

123. R. K. Smith, "The Violation of the 'Liberty,'" U.S. Naval Institute Proceedings, June 1978, p. 65. 

124. The textual account is based upon: James M. Ennes, Assault on the Liberty, 5th ed., (New York: 
Random House 1979), passim, and especially chapters 6 and 7. [LCDR Ennes, USN (Ret.) served in the 
Liberty at the time of that attack]; Stephen Green, Taking Sides: American's Secret Relations with a Militant 
Israel (New York: Morrow & Co., 1984), ch. 9, "Remember the Liberty ..." [This source points out 
at page 230 that Israeli forces almost succeeded in jamming all of the Liberty's radio circuits.]; and record 
of Proceedings [U.S. Navy] Court of Inquiry to inquire into the circumstances surrounding the armed 
attack on USS LIBERTY (AGTR-5) on 8 June 1967 [This source states some of the same facts, in less 
detail, as those set forth in LCDR Ennes' book]. 

125. The very limited response of the U.S. Government to the attack is set forth in Ennes, supra note 
124, chap. 9 entitled "Cover-up." Chap. 10 concerns the Navy Court of Inquiry. Commander, U.S. Sixth 
Fleet launched aircraft to protect the Liberty but they were immediately recalled by order of Secretary 
of Defense McNamara. Id., Appendix D at pp. 237-38. 

The Israeli response may be contrasted with the unequivocal Japanese acceptance of responsibility in 
the sinking in the Yangtze River of the gunboat U.S.S. Panay by Japanese aircraft. See the diplomatic 
correspondence in "The Case of the U.S.S. 'Panay,' December 12, 1937," Naval War College, International 
Law Situations-1938 (Washington: U.S. Govt. Print. Off., 1940) pp. 129-50. 

126. Supra note 3. Jacobson, "A Juridical Examination of Israeli Attack of the U.S.S. Liberty," Naval 
Law Review, Winter 1986, v. 36, p. 1, is an authoritative and comprehensive legal analysis of the attack. 

127. The probable motive is that the communications messages arising from Israel's armed attack on 
Syria, following the attacks on Egypt and Jordan, could have been monitored and recorded by Liberty 
if its electronic listening equipment had not been destroyed. See Jacobson, id., at pp. 16-17. 

128. "Vietnam Decree on Sea Surveillance, of 27 April 1965," International Legal Materials, May 1965, 
v. 4, no. 3, p. 461. 

129. The textual account is based upon R. L. Schreadley, "The Naval War in Vietnam, 1950-1970," 
U.S. Naval Institute Proceedings, May 1971, p. 188. 

130. See Ulrik Luckow, "Victory Over Ignorance and Fear: The U.S. Minelaying Attack on North 
Vietnam, "Naval War College Review, Jan-Feb 1982, p. 17. See also W. Thomas Mallison and Sally V. Mallison, 
"A Survey of the International Law of Blockade," U.S. Naval Institute Proceedings, February 1976, p. 44, 
at pp. 50-51. 

131. Declaration Respecting Maritime Law, Paris, April 16, 1856, Schindler & Toman, supra note 10, 
p. 787. 

132. See Air War Study Group of Cornell University, The Air War in Indochina, rev. ed. (Boston: Beacon 
Press, 1971), passim. 

133. It may be contrasted with the use of mines against Japan in the Second World War. See Johnson 
& Kratcher, Mines Against Japan (U.S. Naval Ordnance Laboratory, 1973), passim. 

134. The U.S. Navy gunfire operation against North Vietnamese land targets and vessels was termed 
Operation Sea Dragon. See generally Schreadley, "The Naval War in Vietnam, 1950-1970," U.S. Naval 
Institute Proceedings, May 1971, p. 188. 

135. See the text accompanying supra notes 108-110. 

136. The textual account is based upon Robert L. Scheina, "The Malvinas Campaign," U.S. Naval Institute 
Proceedings, May 1983, p. 98, and John Nott [British Minister of Defense at the time of the conflict], "The 
Falklands Campaign," id. at p. 118. 



296 Law of Naval Operations 

Security Council resolution 502 (3 April 1982) called for a cessation of hostilities and Argentine 
withdrawal from the islands to reestablish the prior status quo. 

137. The Argentine Antarctic supply ship Bahia Paraiso was converted into a hospital ship and was not 
made an object of attack. Scheina, supra note 136 at p. 98. 

138. Nott, supra note 136 at p. 130. 

139. Ex-U.S.S. Phoenix (CL-46). 

140. Nott, supra note 136 at p. 121. 

141. See Scheina, supra note 136 at p. 106; Fenrick, "The Exclusion Zone Device in the Law of Naval 
Warfare," Canadian Yearbook of International Law-1986, v. 24, p. 91, contains a careful analysis of exclusion 
zones in the Falklands/Malvinas conflict at pp. 109-16. 

142. The facts summarized in the text are based on the opinion of the U.S. Supreme Court in Argentine 
Republic v. Amerada Hess Shipping Corp., 109 S. Ct. 683 (1989). 

143. The decision of the U.S. Supreme Court, id., employed a broad interpretation of the Foreign 
Sovereign Immunities Act, 28 U.S. Code 1330 et seq., which resulted in the Argentine Republic having 
sovereign immunity from this suit and the holding that the Alien Tort Statute, 28 U.S. Code 1350 (a statute 
of the First Congress enacted in 1789), did not apply. 

144. The facts set forth in the textual section are based on Ronald O'Rourke, "The Tanker War," 
U.S. Naval Institute Proceedings, May 1988, p. 30; and Raphael Danziger, "The Persian Gulf Tanker War," 
id., May 1985, p. 160. 

145. Address by CAPT J. A. Roach, JAGC, USN, "Missiles on Target: The Law of Targeting and the 
Tanker War" (20 April 1988), to be published in the 1988 Proceedings of the American Society of International 
Law. Fenrick, supra note 141 at pp. 116-22 analyzes the exclusion zones in this conflict. 

146. The specific facts concerning this attack are based upon Michael Vlahos, "The Attack on the Stark," 
U.S. Naval Institute Proceedings, May 1988, p. 64. 

147. Mallison, supra note 26 at pp. 129-32. 

148. The facts in the textual paragraph are based on Danziger, supra note 144 at pp. 163-64. 

149. Id. at p. 165. 

150. See the text accompanying supra note 130. 

151. O'Rourke, supra note 144 at pp. 32-33. 

152. Wesley L. McDonald, "The Convoy Mission," U.S. Naval Institute Proceedings, May 1988, p. 36. 

153. Id. at p. 37. 

154. Id. 

155. Interview with Captain Seitz, the Master of the Bridgeton, "SS Bridgeton: The First Convoy," U.S. 
Naval Institute Proceedings, May 1988, p. 52. 

156. Id. 

157. McDonald, supra note 152 at p. 43. 

158. The facts in the textual paragraph are based on O'Rourke, supra note 144 at pp. 32-33. 

159. "Libyan Sanctions," Dept. of State Bulletin, March 1986, v. 86, no. 2108, p. 36. 

160. Id. 

161. Id. at p. 12. 

162. Executive Order No. 12543, 3 C.F.R. 181, reprinted in 50 U.S.C.A. 1701 and Dept. of State Bulletin, 
March 1986, p. 37. 

163. Dept. of State Bulletin, March 1986, v. 86, no. 2108, p. 15. 

164. Id. at p. 17. 

165. "Libya Under Qadhafi: A Pattern of Aggression," Dept. of State Special Report No. 138, January 
1986, p. 4. 

166. Richard E. Rubenstein, Alchemists of Revolution: Terrorism in the Modem World 36 (New York: Basic 
Books, 1987). Contrast the political method in Benjamin Netanyahu, ed., Terrorism: How the West Can 
Win (New York: Farrar, Straus & Giroux, 1986). 

167. The Washington Post, April 8, 1988 p. Al:3-6. 

168. Id. The New York Times, Oct. 26, 1989, p. A8:l, reported that Qaddafi conceded past acts of terrorism. 

169. Concerning the consistent violations by Israel of the Geneva Convention for the Protection of 
Civilian Persons (a treaty of both Israel and the United States) in its military occupations of Lebanese, 
Palestinian and Syrian territories, see inter alia, W. Thomas Mallison & Sally V. Mallison, the Palestine Problem 
in International Law and World Order (London: Longmans, 1986), chaps. 6 and 7. 

170. Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958, art. 7(4)(5), 15 U.S.T. 
1606, T.I.A.S. No. 5639. 

171. See, e.g., [1974] Digest of U.S. Practice in International Law, p. 293 (1975). 

172. See, inter alia, George C. Wilson, "U.S. Planes Retaliate for Libyan Attack: Missile Site, Two Patrol 
Boats Fired on in Gulf of Sidra Incident," The Washington Post, March 25, 1986, pp. 1 A:l-5, 13A:l-3; Bernard 



S.V. Mallison and W.T. Mallison 297 

Weinraub, "2 More Libyan Vessels Sunk and Base Hit Again, U.S. Says, Vowing to Keep up Patrols," 
New York Times, March 26, 1986, pp. Al:4-6, A8:l-4. 

173. David Hoffman and Lou Cannon, "Terrorism Provided Catalyst," The Washington Post, p. A12:l. 

174. "U.S. Exercises Right of Self-Defense Against Libyan Terrorism, Dept. of State Bulletin, June 1986, 
v. 88, p. 1. 

175. Id. at pp. 1-2. Ambassador Walters, the Permanent Representative of the United States, substantially 
repeated President Reagan's position in the U.N. Security Council on April 15, 1986, S/PV.2674, at pp. 
13-19. 

176. Seymour M. Hersh, "Target Qaddafi," New York Times Magazine, Feb. 22, 1987, p. 17 at p. 19. 

177. Translation of Der Spiegel, April 21, 1986, p. 17. 

178. Hersh, supra note 176. Following the April 1986 attack on Libya, subsequent reports in the media 
referred to the "disinformation" campaign. See, e.g., Bob Woodward, "Gadafi Target of Secret U.S. 
Deception Plan: Elaborate Campaign Included Disinformation That Appeared as Fact in American Media," 
The Washington Post, Oct. 2, 1986, pp. Al:l-5, A12:l-5, A13:l-2. Admiral William J. Crowe, Jr., Chairman 
of the Joint Chiefs of Staff, expressed concern about the disinformation. Id. See also Leslie Gelb, 
"Administration is Accused of Deceiving Press on Libya," New York Times, Oct. 3, 1986, pp. Al-1, A6:l. 

179. Supra note 165 at p. 1. 

180. Id. 

181. Id. at pp. 5-8. 

182. U.S. Department of State, Fact Sheet: Libya's Qadhafi Continues Support for Terrorism, January 1989. 

183. Id. at p. 6. 

184. Id. at p. 7. 

185. Id at pp. 12-19. 

186. Public Report of the Vice President's Task Force on Combatting Terrorism, February 1986, p. 5. 

187. Id. at p. 6. 

188. Id. at p. 14. 

189. 50 U.S. Code 1701-1706 (1981, with 1986 Supp.). The Libyan Sanctions Regulations are in 51 Fed. 
Reg. 1,354 (1986) as amended by 51 id. 22,802 (1986) codified in 31 C.F.R. 550.207. 

190. European Community News, No. 14/1986, April 14, 1986, (distributed by European Community 
Information Service, Washington, D.C.). 

191. Bulletin of the European Communities Commission, vol. 19, no. 5, pp. 106-110 (1986). 

192. Id. at p. 109. 

193. R. W. Apple, Jr., "Reagan Wins the Day as Libya is Denounced," New York Times, May 6, 1986, 
p. A12:l-4. 

194. Id. 

195. Id. 

196. Bernard Weinraub, "U.S. Says Allies Asked for More in Libya Attack," New York Times, April 
22, 1986, pp. Al:7, A8:l-3. 

197. The Washington Post, April 2, 1986, pp. Al:6, A17:l-4. 

198. See the text accompanying supra notes 111-113. 

199. David H. Ottaway, "Qaddafi Overtures Rejected by U.S., The Washington Post, April 2, 1986, pp. 
Al:5, A17:5-6. 

200. Id. 

201. See the President's statement in the text accompanying supra note 175. 

202. See the text accompanying supra notes 114-116. 

203. Marjorie Whiteman, Digest of International Law (Washington: U.S. Govt. Print. Off., 1971), v. 12, 
chap. 36, pp. 187-204; L. Oppenheim, International Law, Vol. I, Peace, 8th ed., H. Lauterpacht, ed. (New 
York: David McKay, 1955), pp. 687-90. 

204. See the text accompanying supra note 175. 

205. Contrast the imminence of attack in the Caroline incident in the text accompanying supra notes 
114-116. 

206. The Washington Post, March 26, 1986, pp. Al:5, A22:l. 

207. Leslie Stahl, Interview of Secretary Shultz, Dept. of State Bulletin, March 1986, p. 20. 

208. Id. at pp. 20-21. 

209. Id. at p. 23. 

210. "Part III: The Arms Sales to Iran," Report of the Congressional Committees Investigating the 
Iran-Contra Affair, H. R. Rep. No. 433, S. Rep. No. 216, 100th Cong., 1st Sess. (1987), pp. 157-234. 

211. See Cordesman, "The Middle East and the Cost of the Politics of Force," Middle East Journal, Winter 
1986, v. 40, pp. 13-15. 

212. See the text accompanying supra note 162. 

213. 10 U.S. Code 6011 (1989). 



298 Law of Naval Operations 

214. U.S. Navy Regulations, art. 0915 (2) and (3) (1973). 

215. See, e.g., Guy B. Roberts, "Self-Help in Combatting State-Sponsored Terrorism: Self-Defense and 
Peacetime Reprisals," Case Western Reserve Journal of International Law, Spring 1987, v. 19, p. 243; and Jeffrey 
A. McCredie, "The April 14, 1986 Bombing of Libya: Act of Self-Defense or Reprisal?" Id., p. 215. Both 
articles appear in a symposium concerning the April 1986 bombing of Libya, id., pp. 121-293. The symposium 
also contains an incisive article by Professor Rex J. Zedalis concerning the basic values involved in the 
doctrines of anticipatory self-defense entitled, "Preliminary Thoughts on Some Unresolved Questions 
Involving the Law of Anticipatory Self-Defense," id. at p. 129. 

216. Naulilaa Incident Arbitration, Portuguese-German Arbitral Tribunal, 1928, Rec. des decis, des trib. 
arb. mixtes, v. 8, p. 409, reprinted in William W. Bishop, Jr., International Law: Cases and Materials (Boston: 
Little, Brown & Co., 1971), 3rd ed., p. 903. 

217. Convention (IV) Relative to the Protection of Civilian Persons in Time of War, supra note 3, art. 
33. 

218. This factual account is derived from "U.S. Demonstrates Advanced Weapons Technology in 
Libya," Aviation Week & Space Technology, April 21, 1986, pp. 19-20; Russell Watson, "Reagan's Raiders," 
Newsweek, April 28, 1986, pp. 26-27; George L. Church, "Hitting the Source," Time, April 28, 1986, p. 
17. 

219. Hersh, supra note 176 at pp. 17-19. 

220. Id. at p. 22. 

221. 46 C.F.R. 59952 (Dec. 4, 1981). 

222. Time, supra note 218 at p. 20. 

223. Aviation Week, supra note 218 at p. 19. 

224. "Joint Press Conference with Secretary Schultz and Secretary Weinberger," Dept. of State Bulletin, 
June 1986, pp. 3-4. 

225. Id. at p. 4. 

226. Qaddafi and the Libyan Revolution (Boston: Little, Brown & Co., 1986). 

227. L/atpp. 10-11. 

228. Best Laid Plans: The Inside Story of America 's War Against Terrorism (New York: Harper & Row, 1988), 
pp. 310-11. 

229. "U.S. Bombs, Missing Target, Struck Farms Near Base," New York Times, April 20, 1986, p. A12:5, 
6. See, e.g., "A Raid that Went Awry," U.S. News and World Report, June 20, 1988, p. 36. 

230. 67 U.S. 635 (1862). 

231. Supra note 15. The Convention will be considered in detail in Section VI D infra. 

232. See the text accompanying supra note 158. 

233. The Libyan Government stated that there were 37 deaths and 93 wounded in civilian neighborhoods. 
Martin & Walcott, supra note 228 at p. 310. Western newspaper and book sources which have been referred 
to above indicate a substantial number of civilian casualties. Because of the military character of the targets 
set forth in the text accompanying supra note 218, it is presumed that there were a substantial, but unknown, 
number of military casualties as well who may or may not have been involved in terrorist support. 

234. NWP 9, para. 8.1.2.1. A similar formulation of the customary law is in Geneva Protocol I. art. 
51(5)(b), in the text accompanying supra note 101. 

235. Concerning the allegations of attacks against U.S. citizens prior to the U.S. attack, see the text 
accompanying notes 160-162 and 179-181, supra, which refers to direct attacks upon Libyan dissidents and 
alleged support for other terrorism. 

See Warriner, "The Unilateral Use of Coercion Under International Law: A Legal Analysis of the 
United States Raid on Libya on April 14, 1986," Naval Law Review, v. 37, p. 49 (1988), which concludes 
that the attack was lawful. A defect in the analysis is the ready acceptance that "intelligence reports 
indicated that it [the attack on La Belle discotheque] was planned and executed on the direct orders of 
the Libyan regime." Id, at p. 82. The article deems it "doubtful" that Libya "posed a threat to the security 
or political independence of the United States." Id. at p. 92. 

236. Office of the Secretary of State, Ambassador-at-Large for Counter-Terrorism (Jan. 1989). 

237. Id, at p. 5. 

238. Id. at pp. 6-9. 

239. Id. at pp. 12-19. 

240. Id. at p. 19. 

241. Admiral Stansfield Turner, USN (Ret.), has provided examples of excessive secrecy resulting in 
over-classification in Secrecy and Democracy: The CIA in Transition (Boston: Houghton Mifflin, 1985), passim. 

242. Concerning issues of constitutional and statutory law relating to the April, 1986 attack on Libya, 
see War Powers, Libya, and State-Sponsored Terrorism, Hearings before the Sub-Committee on Arms Control, 
International Security and Science of the House of Representatives Committee on Foreign Affairs. 99th 
Cong., 2nd Sess. (April 29, May 1 and 15, 1986). 



S.V. MalMson and W.T. Mallison 299 

243. Par. 8.2. 

244. Par. 8.3. 

245. Par. 8.4. 

246. Myres S. McDougal & Florentino P. Feliciano, Law and Minimum World Public Order: The Legal 
Regulation of International Coercion (New Haven: Yale Univ. Press, 1961), p. 530. 

247. The Martens Clause is named after the chief Russian delegate at the 1899 and 1907 Hague 
Conferences who inserted the clause into the Preambles of Hague Convention (II) with Respect to the 
Laws and Customs of War on Land (1899) and Hague Convention (IV) Respecting the Laws and Customs 
of War on Land (1907). 

Geneva Convention (II) Concerning Armed Forces at Sea, supra note 3, incorporates the Martens Clause 
in art. 62(4). It states that even in the event that a state-party terminates its adherence to the Convention 
(this cannot be done in time of armed conflict or military occupation and until the release and repatriation 
of persons protected by the Convention has been accomplished), "It [the termination] shall in no way 
impair the obligations which the Parties to the conflict shall remain bound to fulfill by virtue of the 
principles of the law of nations, as they result from the usages established among civilized peoples, from 
the laws of humanity and the dictates of the public conscience." 

248. The basic principles considered in the present Section VI are well stated in NWP 9, chapter 8, 
entitled "The Law of Naval Targeting." 

249. The rules concerning surrender in the text are based upon the customary law and its codification 
in various treaties including those concerning naval warfare. 

250. Oppenheim, supra note 22, at p. 475. 

251. Id., at pp. 487-88. See NWP 9, supra note 9, par. 8.2.2.2. 

252. Oppenheim, supra note 22, at p. 488. 

253. The traditional law concerning visit, search and capture is described in supra note 26 at pp. 99- 
100. 

254. The categories in the text are similar to those in the predecessor to NWP 9, Law of Naval Warfare, 
NWIP 10-2, sec. 503 (1955) and in The Commander's Handbook on the Law of Naval Operations, NWP 9, par. 
8.2.2.2 (1987). 

255. See the text accompanying supra notes 72-74. 

256. Compare the consideration of immune vessels and aircraft in Oppenheim, supra note 22 at pp. 476- 
81. 

257. See the text at supra note 246. 

258. Supra note 15. 

259. See Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 
May 14, 1954, U.N. Treaty Series, v. 249, pp. 240, Schindler & Toman, supra note 10, p. 745, which codifies 
some of the customary law. 

260. See id., art. 5(1). 

261. See NWP 9, par. 8.5.1.6. 

262. See Geneva Protocol I, supra note 97, art. 56. 

263. Hague IX, supra note 15, art. 6. 

264. John Keegan, The Price of Admiralty: The Evolution of Naval Warfare (New York: Viking, 1988), pp. 
266-75. 

265. See Mallison, supra note 26, at pp. 19-22. 

266. See also Air Force Pamphlet 110-31, International Law — The Conduct of the Armed Conflict and Air 
Operations (1976) and Department of the Army Field Manual 27-10, The Law of Land Warfare (1956) (This 
manual is being updated and revised). 



300 Law of Naval Operations 

Chapter X 
Noncombatant Persons 

A Comment to Chapter 1 1 of the Commander's Handbook 
on the Law of Naval Operations 

by 
Frits Kalshoven* 



Introduction 

In the history of the development of the law of armed conflict, the year 
1987 stood out in more than one respect. It was the 10th anniversary of 
the adoption, on 8 June 1977, of two Protocols Additional to the Geneva 
Conventions of 12 August 1949, one (Protocol I) relating to the protection 
of victims of international armed conflicts and the other (Protocol II) relating 
to the protection of victims of non-international armed conflicts. 1 The 
Netherlands ratified both Protocols, thus joining the growing number of states 
parties to these instruments. 2 President Reagan announced his decision to 
submit only Protocol II for Senatorial advice and consent. 3 Last but not least, 
all U.S. naval commanders received as Naval Warfare Publication 9, 1987, 
a brand-new Commander's Handbook on the Law of Naval Operations. 

Among the many recent publications about the state of and developments 
in the law of armed conflict, the Handbook is of special interest because, as 
an official U.S. publication following so shortly the President's 
announcement, it may be expected to reflect the views of the present U.S. 
administration on the state of the law. This is not merely a matter of academic 
interest; the law of armed conflict relies for its continued existence and further 
development as much on custom as on the conclusion of treaties, and the part 
of the Handbook relating to the law of armed conflict may be taken to represent 
United States opinio juris in this regard. 

As we shall see, the 'Views of the present U.S. administration" are a 
mixture of rules in treaties to which the United States is a party, rules of 
international customary law, and those new rules in Protocol I which the 
present U.S. administration has chosen to consider as positive developments. 
Obviously, the United States is not legally bound to apply any rule of the 
last-mentioned category. Conversely, its unilateral espousal of such new rules 
cannot effectuate a legal obligation upon its potential adversaries, whether 



Kalshoven 301 

parties to Protocol I or otherwise, to respect these rules in their relations 
with the United States. 

The focus in the present comment is on Chapter 11 of the Handbook, with 
its deceptively simple title "Noncombatant Persons." Like the rest of the 
Handbook, Chapter 11 earns high marks for brevity; it is, in effect, a great 
deal shorter than the relevant provisions of treaties in force taken together. 
This exercise in abbreviation carried a double risk: for one thing, the drafters 
may have left out subject matter that might be regarded as of vital importance 
to U.S. naval commanders; for another thing, the necessary condensation of 
often complex treaty language into simpler, ostensibly clearer phrases may 
at times have resulted in what an outsider might consider an inadmissible loss 
of legal precision. The question needs to be examined as to what extent the 
drafters have succeeded in avoiding these risks. 

Section II of this essay takes a first look at the term "noncombatant persons" 
as used in the Handbook; it introduces the applicable treaties and goes into 
the question of what appears to be the scope of application of Chapter 11. 
In sections III and IV, the various categories of "noncombatant persons" pass 
in review, in the same order as they appear in the Handbook: the civilian 
population in general in section III; other categories of persons in section IV. 
Focal points are: conditions for recognition and protection as a 
"noncombatant person," factors entailing loss of protection, and the 
treatment of the persons in question. Also in section IV, some attention is 
devoted to protective signs and symbols, the use of distinctive signals and 
means and methods of identification in general. A brief concluding section 
rounds off these comments. 

II. "Noncombatant Persons" 4 

The Term "Noncombatant" 

Although the term used in the title of Chapter 11 of the Handbook may 
appear simple enough, surely a "noncombatant" does not represent a simple 
notion at all. The term is used to indicate a broad range of people with very 
different characteristics. This is apparent from the introductory paragraph 
11.1 of the chapter, which states in part: 

Noncombatants are those individuals who do not form a part of the armed forces and 
who otherwise refrain from the commission of hostile acts. Noncombatants also include 
those members of the armed forces who enjoy special protected status, such as medical 
personnel and chaplains, or who have been rendered incapable of combat by wounds, 
sickness, shipwreck, or capture. 

When a lawyer is told that something "is" this but "also includes" 
something else, alarm-bells start ringing in his mind: are the notions thus 
brought together under one heading really similar in all relevant respects? 
His alertness grows when he notices that an earlier chapter of the Handbook 



302 Law of Naval Operations 

(Chapter 5, to which paragraph 11.1 refers) uses much more cautious 
language. Paragraph 5.3, on Combatants and Noncombatants, begins by 
stating, in much the same words as those used in paragraph 11.1, that: "The 
term noncombatant is primarily applied to those individuals who do not form 
a part of the armed forces and who otherwise refrain from the commission 
or direct support of hostile acts." It then explains that, "[i]n this context, 
noncombatants and, generally, the civilian population are synonymous.*' 
Paragraph 11.3 adds that, "[t]he civilian population consists of all persons not 
serving in the armed forces, militia, or paramilitary forces and not otherwise 
taking a direct part in the hostilities. ,, 

After this elucidation of what is offered as the primary meaning of the 
term, paragraph 5.3 informs the reader that "noncombatants" may also have 
entirely different connotations: 

The term noncombatants may, however, also embrace certain categories of persons who, 
although attached to or accompanying the armed forces, enjoy special protected status, 
such as medical officers, corpsmen, chaplains, and war correspondents. The term is also 
applied to armed forces personnel who are unable to engage in combat because of 
wounds, sickness, shipwreck, or capture. 

Treaties Relating to "Noncombatant Persons" 

Without entering for the moment into the details of the various statements 
in paragraphs 5.3, 11.1 and 11.3, it appears useful to identify at the outset 
the treaties especially relevant to the present inquiry. It is surely a trite 
observation that, unfortunately, the law of armed conflict does not provide 
just one set of rules governing the position of all "noncombatants" as "people 
not involved in the fighting," in the sense as used in the Handbook. Indeed, 
with one exception, the treaties in force do not use the term at all. 5 

The majority of the treaties concerned belong to what is commonly known 
as the "law of Geneva," that is, the long list of conventions starting, modestly 
enough, with the ten articles of the Geneva Convention for the Amelioration 
of the Condition of the Wounded in Armies in the Field, of 22 August 1864, 6 
which over the course of time came to provide for the protection of an ever- 
widening circle of war victims. The Convention on the wounded and sick 
soldiers in the field of 1864 was followed by the wounded, sick and 
shipwrecked at sea in 1899; 7 prisoners of war in 1929; 8 and last but not least, 
civilians, mainly though not exclusively those in enemy or enemy-occupied 
territory, in 1949. 9 

While the "law of Geneva" knew this regular, step-by-step development, 
another part of the law of armed conflict, governing conduct during hostilities 
and commonly referred to as the "law of The Hague," was codified in a rather 
distant past, by the Hague Peace Conferences of 1899 and 1907. 10 After this 
feat the "law of The Hague" was for a long while left alone (and to customary 
development). Major parts of this body of Hague law eventually came to be 
included in the "reaffirmation and development of international humanitarian 



Kalshoven 303 

law applicable in armed conflicts" of the 1970s that resulted in the adoption, 
in 1977, of the two Additional Protocols referred to above. 

For purposes of the present comment the following treaties are of particular 
significance: 

- the four Geneva Conventions of 1949 for the protection of war victims, 
viz., the First Convention (wounded and sick on land); the Second Convention 
(wounded, sick and shipwrecked at sea); the Third Convention (prisoners of 
war); and the Fourth Convention (civilians); 

- the Hague Regulations on land warfare, of 1899/1907, together with the 
Hague Convention (IX) on naval bombardment; and 

- the Additional Protocols of 1977. 

Examination of the relations between the various types of "noncombatant 
persons" listed in the Handbook and the categories of persons specified in the 
relevant treaties will be the main purpose of the next sections. 

Scope of Application of Chapter 11 

A preliminary point is the scope of application of Chapter 11 (and 
presumably, of the entire Part II of the Handbook, on the "Law of Naval 
Warfare"), both as regards time and place. 

Part II of the Handbook refers throughout to "armed conflict," without any 
attempt at definition. In the law of armed conflict, the term encompasses 
both international and internal armed conflicts. Since 1949, Art. 3, common 
to the four Geneva Conventions, makes separate provision for the latter type 
of armed conflict. In 1977, Art. 3 was supplemented by Protocol II. While 
the conduct of hostilities in an internal armed conflict need not be very 
different from the same sort of activities in an international one, the law 
differs significantly. One such difference is that the law relating to internal 
armed conflicts, whether in its 1949 or 1977 versions, does not recognize a 
separate category of "combatants," as those persons who, in contradistinction 
to the rest of the population, "have the right to participate directly in 
hostilities." 11 

Chapter 11 and Part II in general do not differentiate between the two 
types of armed conflict and appear to have been written with an eye to 
international armed conflicts in particular. Yet, the U.S. Navy may become 
involved in an internal armed conflict in two different situations: when the 
United States itself becomes the scene of such a conflict, or when it steps 
into an internal conflict elsewhere. The first case is probably so purely 
hypothetical that provision need not be made for it in a Commander's Handbook 
on the Law of Naval Operations. On the other hand, in United States practice, 
active involvement in other nations' conflicts is